Tag: Photography

Remembering Helen Levitt: “New York’s Visual Poet Laureate”

When I saw that this year’s World IP Day/Week celebrates the contributions of women, the first thought that came to mind was a memory of a chance meeting in the Spring of 1986 with a legendary photographer named Helen Levitt. My friend Josh and I were in New York City down from college and were supposed to stop by a gallery owned by a friend of his family. When we arrived, the owner, along with another woman who looked about seventy, was reviewing stacks of Levitt’s photographs. So, when Josh announced, “I love Helen Levitt,” he did not notice—but I did—that the older woman sitting at the end of the table, very quietly, almost to herself, said, “Thank you.”

Then, with proper introductions made, we were invited to join Ms. Levitt and the owner in poring over some of most widely-regarded images ever made in the genre of street photography. “They kept offering us more photographs like a pair of Jewish grandmothers serving chicken soup,” as Josh remembers it. At the age of eighteen, I had never heard of Helen Levitt or her work, but then neither had a lot of people due to the fact that she was an intensely shy and private person, shunning publicity for most of her more than sixty-year career capturing some of New York’s most poignant, charming, humorous, and painful little moments.

Had I thought of anything smart to ask, Levitt wouldn’t have wanted to answer it anyway, as NPR’s Melissa Block would later discover in a rare interview conducted in 2002. In response to Block asking about one photo depicting a group of girls on the sidewalk watching floating soap bubbles that seem to be following them, Levitt replied, “If it were easy to talk about, I’d be a writer. Since I’m inarticulate, I can express myself with images.”

In an era when the techno-pundits have preached to all the artists that they must abandon the concept of value in their works and instead “cultivate their personal brands” on the free platforms of abundance, this memory of a chance meeting with a woman and artist who rejected notoriety seems well suited to observing World IP Day 2018. Because without question, Levitt’s work speaks for itself, even if she was reluctant to speak for her work. As her friend, fan, and collaborator James Agee wrote in the introduction to her first book in 1965, “…the photographs as a whole body seem to me to combine in a unified view of the world, an uninsistent but irrefutable manifesto of a way a of seeing, and in a gentle and wholly unpretentious way, a major poetic work.”

Born in Bensonhurst, Brooklyn in 1913, Levitt dropped out of high school in her senior year and first learned basic photographic skills working for a commercial portrait photographer starting in 1931. By the mid-1930s, there was a growing emphasis on documentary photography, when artists like Walker Evans, Ben Shahn, and Dorothea Lange were hired by FDR’s Resettlement Administration to portray the effects of the depression and the famine of the “dust bowl.” Levitt, who would become a colleague of Evans and Shahn, was initially inspired to take pictures with a social agenda, but in that same 2002 interview, she said …

“I decided I should take pictures of working-class people and contribute to the movements. Whatever movements there were—Socialist, Communist, whatever was happening. And then, at one point, I saw the photographs of Cartier-Bresson, and I realized photography could be an art. That made me ambitious. I wanted to try to do something like that. Instead of pictures were being use for a purpose. Trying to approach making a picture that would stand up by itself.”

After Levitt met Bresson in 1935, accompanying him while he photographed the Brooklyn waterfront, she bought a used Leica the following year and taught herself composition by looking at art in museums. Then, when she began taking pictures in the city’s poorer neighborhoods, like Spanish Harlem and the Lower East Side, it was not as a documentarian but as an artist. Unlike the very specific empathy inspired by Lange’s beautifully heartbreaking “Migrant Mother,” Levitt abandoned that kind social commentary for something more subtle, or as Agee and many other critics would say, for photographs that are “lyrical.”

In the days before air conditioning and television, the streets of the neighborhoods Levitt visited were the living rooms and commons of the adults and—most of all—the playgrounds and “battlegrounds” of the the children. Here she found visual poetry.

In one of my favorite photos, a group of boys plays with a broken mirror on the sidewalk. Two of them pick through the jagged shards on the curb while another pair holds the empty, wooden mirror-frame upright so that what first grabs our attention is the small boy seated on a tricycle, positioned behind and, therefore, within the upheld frame. We instinctively see what looks like a reflection of a child who isn’t there until a moment of study corrects this perception. Particularly because of this frame-within-a-frame element, this image feels almost collage-like, composed of fragments, much like the broken bits of mirror being contemplated by the boys.

Like much of Levitt’s work, this photograph is full of kinetic energy, not so much telling a definitive story as inspiring the viewer to concoct any number of stories to describe the moments just before and just after the scene she has chosen to memorialize. Although the children in this image are demonstrably poor, neither that nor their multi-ethnicity is what Levitt presents or asks us to think about. To the contrary, the mood of the photo is more like a Rockwell idyll–just boys being boys. In this regard, it’s easy to wonder if Levitt’s profound shyness did not lend itself to a proclivity for the kind of detachment needed to make art from a keyhole view of real people. I asked my friend Marco North about Levitt’s influence on his own street photography, and he replied …

“She looked at the world really carefully, and recognized the most subtle gestures, the most fleeting laughter and elevated them to something fairly epic. I feel wisdom in her images, about life’s complexity – pain and triumph, joy and tears it is all there, with a gentle gaze, set inside a landscape (her pictures always carry context, a lot of environment with them.) I think Levitt taught me that there is a way to take the ugly, grotesque moments we witness in the street and just witness them, adding nothing overt to them, not commenting or romanticizing or demonizing – just putting a moment on a plate and serving it for lunch, no fancy parsley sprigs on it, just food for thought.”

Possibly inspired by Ben Shahn, Levitt often used a right-angle lens that allowed her to point the camera perpendicular to what she was really framing, thus preventing her subjects from altering their natural behavior for the camera. In that same NPR story, photography scholar and curator Maria Morris Hambourg describes Levitt as “like a cat, very quiet, very slight.” This jibes with the the resulting images suggesting that Levitt deftly maneuvered between the obvious icons of poverty—the broken, peeling, and threadbare neighborhoods—to capture intimate, human moments that her subjects sloughed off without the slightest awareness of their latent artistic value. As Joel Smith writes for The New York Review of Books, “Any human gesture in a street photograph—a swinging arm seen from this angle, a planted foot from that one—results from the posture and movements not of the subject alone but of two people, photographer and photographed.”

Levitt’s first solo exhibit was mounted at New York’s Museum of Modern Art in 1943. A year later she began collaborating with James Agee and artist Janice Loeb on a 14-minute film called In the Street. Essentially Levitt photographs in motion, segments from this film serve as the prologue to Episode Seven (2001) of Ric Burns’s New York documentary series. She received Guggenheim fellowships in 1959 and 1960 to resume her photography, this time in color. Although considered a pioneer in color work, many of her prints were unfortunately stolen out of the modest Greenwich Village walk-up apartment where Levitt lived alone for more than thirty years.

The first national retrospective of Levitt’s work was launched in 1991 by the San Francisco Museum of Modern Art; and in 1997, she received the International Center for Photography’s Master of Photography Infinity Award. Most of her books were published after 1987, when she was 74, suggesting Levitt might have been as reticent to market her work as she was to market herself—at least in contrast to many notable photographers. On March 29, 2009, she passed away in her sleep at the age of 95, and I wonder if there was still a box in the corner marked “Here and There,” the title of a book published in 2004.

Particularly because Helen Levitt never did “cultivate her brand,” her work, and its influence on countless subsequent photographers, says something about the meaning of “originality” in photography. The copyright skeptic often doubts the premise of “authorship,” particularly in works that are at least co-written by forces external to the author. As a mechanical (and now digital) medium of creation, photography has always been vulnerable to this criticism; and street photography might seem particularly “unoriginal” to some.

By contrast, numerous articles refer to Levitt as “New York’s visual poet laureate,” and although I cannot find the source of this accolade, it seems highly appropriate. In much the same way that Walt Whitman poeticized the precision of a blacksmith’s hammer or the dangling shawl of the prostitute in Leaves of Grass, Levitt’s street photographs are among the essential phrases in the city’s ever-expanding vernacular.

Khloe Kardashian’s Instagram Copyright Mistake

Lens photo by mrbrainous

For all the attention paid to music and motion picture piracy, the most chronically infringed works via the internet has got to be photographs.  The speed and volume with which photos are uploaded and redistributed by both commercial and non-commercial users is so constant that it occasionally results in some amusing—if not infuriating—mistakes.  Like the time in February of 2013 when the Fox News site posted a photo of newlyweds kissing atop the Empire State Building above a headline that read:  To be happy, we must admit that men and women aren’t ‘equal.’ In response, the forces of the internet had a blast letting Fox know that the pair depicted in the image are both women—the first same-sex couple to wed after New York State legalized these unions.

Such gaffes are not limited to people espousing uptight social values, of course; but this kind of mistake says a lot about the use of images today because such a dumb error, presumably made in haste, implies that nobody involved with the Fox story bothered to seek—or probably even consider—permission to use the image.  It was taken by photographer Richard Drew and is registered with AP along with a standard description on its web page, so it would be pretty hard to legally license the photo without realizing that it depicts a same-sex couple.

It is an understatement and a half to say that social media platforms have fuzzed-up general understanding of permission to use photographs today, even for certain professionals who should know better.  When photography collides with celebrity and social media, though, I guess we should not be surprised that Khloe Kardashian (or someone who works for her) didn’t know that she needed to obtain a license from the rights holder, even to display an photo of herself on Instagram.

The photo, taken by Manual Muñoz, is a fairly typical, professional-quality paparazzo’s capture of Kardashian walking toward camera in 1/4 profile, reportedly heading into a trendy Miami restaurant.  The copyright in the image is owned by Xposure Photos UK LTD, which had sold a limited license to the Daily Mail, whence it is alleged that Kardashian copied the photo to her Instagram account without permission and, in the process, removed the rights management information from the image. Thus, Kardashian is potentially on the hook for violating three sections of the U.S. Copyright Act—the right of reproduction (§106(1)), the right to publicly display a pictorial work (§106(5)), and removal of copyright management information (§1202(b)).

The complaint filed by Xposure specifically notes the commercial nature of Kardashian’s use, alleging that “…every one of Kardashian’s Instagram posts is fundamentally promoting something to her 67 million followers.”  While commercial vs non-commercial use is not dispositive in determining whether or not an infringement exists, it can factor considerably in the kind of relief a plaintiff may be granted by the court.

Khloe Kardashian is a business, what marketing professionals call an influencer—someone whose social media following is so large that they earn fashion shoots, paid appearances, and endorsement opportunities worth millions of dollars.  As such, Xposure would seem to be on solid ground in pursuing the upper limits of relief for damages. Their argument that “every photo promotes something,” should carry considerable weight, even if that something is Khloe Kardashian herself.

The distinction between personal and professional use of a platform like Instagram is something any user, not just celebrities, should more carefully consider.  I suspect it’s become so habitual at this point to share images as rapidly as they’re made that even public figures with professional management teams forget that they have the same legal considerations to make before publishing on social media as if they were proposing to publish an old-school print campaign.

Additionally, because platforms like Instagram provide the opportunity for people to create their own celebrity by blurring the line between “private” and “public” moments—for instance, displaying provocative selfies alongside professional fashion photos—mistakes like Kardashian’s are almost inevitable.  According to the Wikipedia entry for Kendall Jenner, Vogue dubbed the crossover between social media self-promotion and the world of professional fashion modeling as the “instagirl era.” And as Vanessa Friedman recently noted in The New York Times, being this kind of influencer can come with unanticipated liabilities, like the possibility that the models who helped promote the disastrous Frye Festival may be named in the class-action lawsuit against event organizers.

All prospective instagirls and instaboys, especially those who don’t have Kardashian resources, should remember to consider the rights and implications of a photo before publishing.  Anyone using, or hoping to use, social media to grow their own brand as influencers or creators, should be wary of the anti-copyright messages suggesting that these legal considerations are obviated by the relative ease of distribution via digital platforms.  The authors of those opinions will not be defending you in a litigation.

Don’t Confuse Copyright With Publicity, News, & Commentary

I caught a piece of a conversation on The Talk about this story, with the celebrity panel largely focusing on the lack of rights enjoyed by public figures.  The discussion segued rather quickly from copyright to privacy, commenting on the fact that Kardashian is not allowed to use this image without permission, but then contrasting this fact with the apparent contradiction that she also would have a hard time removing invasive or embarrassing images captured by the types of paparazzi who trade in wardrobe malfunctions and other salacious forms of “news.”

While I personally sympathize with public figures when they’re the targets of cheap, gimmicky invasions that serve only puerile social interest, the fact remains that one price of celebrity is an abandonment of privacy because public figures are—in a first amendment context—always news. Just about any image of a public figure that is legally obtained counts as reportage, protected by the first amendment—even wardrobe malfunctions and other moments of human folly.  One may also lampoon or otherwise comment upon a public figure by altering their images, as long as that alteration doesn’t implicate libel.  Such alteration could violate a copyright, but it will not have anything to do with the publicity right of the person in the image.

The right of publicity is protected at the state level, hence varying statutes, but the general principle is that no individual or entity may use the likeness of either a private person or a public figure for the purposes of endorsement of a business, a political message, a social agenda, etc. without that individual’s permission.  Even users of stock photos should note that there are often separate model releases requiring that licensees get permission from the models for any use that would be considered endorsement.

When it comes to violating the publicity right, the same factor that makes Kardashian’s alleged copyright infringement (i.e. that she’s a famous brand) potentially more expensive would also give her claim more heft if she were to seek damages for unauthorized use of her likeness for the purposes of endorsement.  In short, the fact that she is news gives the paparazzo’s photo a market value that she has no right to control or infringe; but at the same time, her likeness is also valuable to advertisers, which she has every right to control and protect.   General discussion of theses stories occasionally conflates these principles.

On the Serbian Proposal to Abolish Photography Copyright 

Last week, the Serbian Parliament unanimously voted down a proposal to abolish copyright protection in that country for what it called “routinely made” digital photography. In fact, according to the Facebook page Protect Photographers Copyright, even the individual member of Serbia’s ruling Progressive Party, Dusica Stojakovic, who introduced the measure, did not vote for it herself.  This was the second time the proposal to abolish these rights has come up for a vote and was defeated; but professional photographers, especially photojournalists, say the idea is not dead and the fight is not over.

The strangeness of this proposal, particularly coming from the party leading Serbia’s fledgling democracy, is a bit hard to fathom.  After all, the potential of disenfranchising professional photojournalists while leading democratic reform is entirely inconsistent with the stated agenda of the party—not to mention the history of democratic reform.  And in fact, this story by Bogdan Ivanisevic, writing for Balkan Insight, states:

“Abolition of copyright in photographs tout court is not what the ruling Serbian Progressive Party and its partners ever intended.

What they aimed for was to abolish copyright for a subgroup of photographs, those “routinely created” as the proposed text phrased it.

That said, had the ruling majority adopted the text as formulated by parliament’s legal committee, it would have been troubling.”

So, without being Belgrade insiders, we might interpret these events as an attempt to fashion a legal distinction between the professional class of photos and the millions of selfies and snapshots uploaded to the Internet.  And presumably, the professional photographers who have protested this measure agree with Ivanisevic in identifying as “troubling” the overly broad language in the party’s measure, which is stated thus:

“Every routinely made photograph, which appears and is taken in electronic form, regardless of whether it is the true original creation of an author, will cease to enjoy protection as the creation of an author.”

Copyright laws in Europe vary with regard to granting protection to “non-original” photographs, which is to say the courts have differing means of interpreting “originality” in a legal sense. But it is beyond problematic to attempt to make these distinctions at the legislative level. The “amateur” is more than capable of taking a highly original photograph; she may turn professional or take a handful of pictures of great artistic value without necessarily considering herself a “photographer”.  Are the early snapshots of a great artist of no value because they’re not his “serious” works?  What about iconic and invaluable serendipity like the 8mm film of John F. Kennedy’s assassination captured by a tourist named Abraham Zapruder?

Copyright skeptics will answer many of these questions with abolishment or abridgment of copyright protection for all images.  This seems particularly true today in reaction to the ubiquity of images captured and uploaded every second to various web platforms; and this thinking appears to be a factor in Serbia’s Progressive Party as well. But if we look at the history of photography in the US, as well as about 150 years worth of legal theory on the copyrightability of the photograph, the increase in volume of what we might call “casually made” images does not really change the calculus all that much.  In fact, while the US has a very low standard of “originality” in copyright, both the theory behind that rationale and the practical applications of enforcement generally conform to common and reasonable distinctions between “original” and “non-original” photographs.

While it may seem to a casual observer that the question of copyright in the photograph is different today than in pre-Internet times, the truth is that both the theoretical and practical questions currently summon the same discussions as when the medium was first invented. It is common to say that photography—along with just about everything else—has been “democratized” by digital technology; and from this generalization comes the notion that it seems absurd to contemplate a copyright in every one of the billions of images that travel from smart phones to Web servers around the world every hour.  And as a matter of practical application, it is absurd to imagine a copyright in every one of these images, but it is also fortunately not necessary.

For starters, the process of making photos was democratized at least ninety years before the availability of the first personal computer. In 1888, the Eastman Dry Plate and Film Co. introduced the Kodak camera, which they advertised as “The only camera anybody can use without instructions.” And by the early 1970s, if you were me as a child stuck watching your grandfather’s vacation slides, you knew for certain that the Eastman/Kodak company had more than surpassed its goal of democratizing the photographic process. In fact, we can safely assume that, even by the 1950s, there must have been billions of images processed by millions of non-professional photographers all over the world. So, while it may be true that innovations like the smart phone have surely increased the number of images captured by every man, woman, child, and monkey, there was already a staggering volume of “amateur” photos in the world long before the inventors of Instagram were even born.

Moreover, the expansiveness of digital imaging can be somewhat exaggerated as a  justification for devaluing the photograph on principle, particularly when there is a corresponding disposability or invisibility that comes with digital diffusion of casually-made images.  The same technology that makes capture and upload so easy also makes the majority of these experiences fleeting for both makers and viewers. Still, what is unquestionably different today is the ability, in principle, for everyone’s proverbial grandfather to show his vacation photos to the entire world; but this fact alone does not inherently change the conversation about copyrights in photography from either a theoretical or a practical perspective.

The Copyrightability of the Photograph

Almost from the invention of the process, debate began among critics, connoisseurs, and artists as to whether the photograph was in any way a creatively expressive medium or merely a mechanical means for recording data.  And this dichotomy still manifests in the words of photo teachers everywhere, when they ask new students,  What makes a great photograph? It is not by coincidence that this same aesthetic discussion parallels the legal questions of copyrightability; and this is one reason why photography was so influential in the history of copyright law. For the first time, anybody with comparatively little training could make an image, and so grappling with the technology itself helped reshape copyright law for the modern age.  But it is also not farfetched to think that the copyright considerations themselves helped to shape the evolution of photography as well.

Loyola Law School professor Justin Hughes explores these ideas in detail in his paper The Photographer’s Copyright, published in 2012 in the Harvard Journal of Law & Technology.  He explains that from the time photographs were protected under copyright (1865 in the US), judges had to wrestle with more or less the same ideas, theories, and biases as art critics in order to consider what, if anything, makes one of these machine-made images an original work of authorship.

Today, with decades of tradition behind us, we generally recognize that a photograph can be either an expressive work or a mechanical record or both; but in early efforts to identify the hand of the author (i.e. what qualities make a photograph copyrightable), jurisprudence leaned first in the direction of giving weight to the photographer’s process and later in the direction of evaluating the end product, regardless of how the image was made.  The chronology of this thought process is due to the fact that the first case to come to the Supreme Court in 1884—which involved the infringement of a studio portrait of Oscar Wilde made by Napoleon Sarony—forced the Court to seriously consider the defendant’s argument that photographs should not be copyrightable at all. Thus, their analysis of the image known as Oscar Wilde No.18 focused on the specific choices made by Sarony in the studio in order to capture a brief moment of reality.

This identifying “originality” (in the legal sense) by examining the process of the photographer can be objectively expedient when the choices made by the author are readily apparent, as would be the case with a contemporary fashion photograph made with models, props, lighting effects, etc.  But this line of analysis becomes more problematic when considering a photograph of a documentary nature, like a landscape, street photograph, or the work of photojournalism—all examples in which the photographer cannot possibly control many of the elements that constitute the resulting image.  Furthermore, as Hughes discusses, these documentary images must also be compared and contrasted with photographs that are purely mechanical and/or made for the sole purpose of recording data—like surveillance imagery, mapping, or evidence.

For instance, what is the difference between the evidence-gathering photography of a police officer investigating a homicide in 1941 and one of the now-famous photographs taken by Wegee (Arthur Fellig) at the same crime scene? No doubt, many people can answer that question from an artistic perspective, but in reviewing the legal theory from the 1860s to the present, Hughes describes judicial views that sound not unlike those of the art or cultural critic. In other words, the features that make Wegee’s photo more expressive and more engaging than the photos taken by the detective also happen to make it more copyrightable. Hughes notes this subjectivity when he writes, “Where we think it is fair to offer legal protection, we will be more likely to find copyright sustaining originality.”

Hughes reports that in 1903, Justice Holmes introduced the notion of personality to the discussion in the case Bleistein v Donaldson Lithographing Co. This is the moment when copyright law becomes as universally available as photography itself.  Hughes writes, “Bleistein provided American law with an originality threshold low enough that all can enter, giving us a deeply egalitarian, democratic copyright law that has neither place nor need for the creative genius.”   From this notion comes the idea of “seepage”, which is used by copyright scholars to describe the notion that even when multiple individuals engage in the same creative action (e.g. tourists taking pictures of a national monument), that each individual cannot help but imbue her own images with her personality—that the individual’s character seeps into the work.

This low threshold of originality might appear to invite the aforementioned absurdity of billions of copyrights in billions of mediocre images, but not quite. Because concurrent with this egalitarian approach to originality for broad protection under copyright comes an equally thin patina of analysis as to precisely what may be copyrightable within a specific image, and in what contexts.  From the analyses applied in specific cases, we learn that there can be considerable similarity between two images, both of which can have a copyright, and neither of which necessarily infringes upon the other. These analyses can factor greatly in a specific case—particularly if it’s creator v creator—but for the broader question of copyrightability, it was first sufficient that the author asserted originality, and then after 1976, that photographs would be entitled to the same automatic copyright as all other works

This brings us to a practical reason why the Serbian proposal is so unnecessary—at least insofar as its Parliament might look to US copyright law for guidance–and this is the matter of registration.  Because while it is true that every US citizen who snaps a photo does have an automatic copyright in that image, this is functionally irrelevant in most cases unless the individual registers the image with the Copyright Office.  This is due to the financial realities of litigating an infringement claim in federal court.  If an image is registered, the rights holder may seek statutory damages for infringement, which is essential because proving actual damages from a use is a much more challenging legal argument to present.

So, unless the image owner has the resources to spend in an effort to prove actual damages in an infringement case—this by the way implies that photography is probably his/her profession—the inability to claim statutory damages (due to non-registration) is a barrier to engaging a litigator to pursue a case at all.  Hence, while there may be billions of non-professional images out there, even very good ones, there are likewise billions of reasons these will not be registered in jurisdictions in which an infringement claim is feasible.  Moreover, simply by choosing to upload personal pictures to certain platforms, the photographer cedes considerable—if not all—grounds for an ownership claim in the image as stated in some Terms of Service.  If anything, the new realities of the digital age ought to give “amateur” image makers a moment’s pause to consider the implications and rights associated with the photos they share rather than going the other direction of abandoning IP rights as obsolete.

Rather than rephrase the Serbian proposal—particularly if it is a reaction to digital ubiquity—the Progressive Party should abandon the idea that it is necessary, possible, or democratic to attempt to define at the legislative level “originality” in photographic works. The US has automatic copyrights, a low threshold of originality, trillions of “amateur” photographs, a vibrant professional, art, and journalism class of photographers; and our courts are not overrun with infringement cases in these works. For the sake of free expression, for journalism, and for economic development, the Serbian Parliament should affirm a copyright in all photographs and let their courts settle actual disputes.