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When artist Richard Prince screengrabbed posts by users on Instagram, the photo-sharing social media platform owned by Facebook, turned them into prints and sold them for around $90,000, reactions were mixed.
Some of the Instagrammers were flattered, some were outraged and others shrugged their shoulders. “Yes, my portrait is currently displayed at the Frieze Gallery in NYC. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It’s already sold ($90K I’ve been told) during the VIP preview. No, I’m not gonna go after him,” posted Instagram user @doedeere.
That Prince’s actions infuriated professionals, who have seen their ability to make a living dwindle as businesses around the world seek to use cheap or even free material, yet elicited a giant “meh” from many ordinary users, says much about the dichotomy of opinion around copyright and the appropriation of work online.
Social media have been encouraging us to share our lives ever since the early days of MySpace. We Instagram our breakfasts, Facebook our lunches and tweet our dinners, along with pictures of our cats, our holidays and our events. This in turn has contributed to a situation where copyright isn’t always treated with the respect it should be.
Keri Bevan, a photographer whose work has been licensed to retailers such as the John Lewis Partnership and the National Gallery in London, knows only too well what can happen when a big company gets it wrong.
She was approached by Gap, the clothes retailer, to license three of her images of London to use in its in-store marketing for shop windows. “Then I got an email from a client who had bought a print of one of the pictures I licensed to Gap saying they had seen it online.” Her images were being used in Gap’s online marketing, despite the fact that she had specifically licensed them only for use in shop windows.
Gap explained that it was an honest mistake and the dispute was settled amicably. “I got quite a bit more money, but it wasn’t a huge amount,” she says.
But the damage had already been done. A Google image search shows the photograph has been reposted on Pinterest, Facebook and myriad other sites thousands of times — and not all of those posts are social media users innocently sharing an image they like. “I saw a girl claiming to be a photographer and she’d used all my pictures,” she says.
The result is that she has largely lost the ability to make money from her image. “Once digital material is out there, you lose control of it,” she says.
One problem is that copyright, while in principle straightforward, is hedged with exceptions, and those exceptions are different in every jurisdiction. The key principle is that the person who took the picture automatically owns the copyright and thus has the right to decide how their work is used. That goes for everything from a snap of your cat to the work of David Bailey.
Prince’s use of Instagrammers’ work might at first seem clear: he had no right to appropriate photographs, and making money out of them certainly seemed to add insult to injury. Peter Brownlow, who specialises in copyright and intellectual property at law firm Bird & Bird, points out that under US law, “transformative use is part of fair use”.
In the UK, things might be different. “If someone tried to sue him in the UK, we have fair dealing rather than fair use,” he says. “Is it pastiche or parody? Is it quotation?”
“Quotation” usually means quoting from written works, but in cases such as that of Prince, you could say his prints “quoted” the work of the Instagrammers.
Brownlow points out that at present in the UK there is no case law to clarify the situation. “Changes were brought in to allow people a bit more freedom of expression, not to have copyright sitting as a block on new artworks,” he says. “There is a balancing act to be done, however: how do we protect people’s rights while allowing flexibility to others?”
Businesses, especially small ones with limited access to copyright lawyers, need to be aware of the rights of copyright-holders, however big or small.
“We come across a number of start-ups that are very interested in intellectual property themselves. Sometimes all they have is an idea, or software and intellectual property is very important to their business,” says Brownlow. “Education for start-ups is very important.”
Perhaps the big sharing platforms — Facebook, Instagram, Twitter, Pinterest, the Tumblr blogging platform and others — could be more helpful by encouraging an atmosphere of consent. Most ordinary users do not think twice about helping themselves to a friend’s picture to use as their profile shot — but those users go on to work for businesses that do need to be scrupulous about copyright.
Instagram’s terms and conditions clearly state: “We respect other people’s rights and expect you to do the same.” They go on to warn: “If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.”
Clear and prominent reminders about who owns images would help, rather than being buried in dense legalese in the rarely read terms and conditions. There should also be reminders that copyright owners — even if it is your best friend — must be asked before you share one of their pictures with your online friends and followers.
If people regularly sought consent for images, encouraged to do so by social media providers, they would carry that respect for other people’s work into their workplaces. That would go a long way towards making everyone more aware of their rights and responsibilities.
Keri Bevan is the author’s sister-in-law
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