Copy/right and the Nature of Art

Wow, more than a month since the last post! Well, like the road to hell, that was completely unexpected and unintentional. There were some good reasons, though - see below.

There is an ongoing debate in the photographic community about copyright and the nature of art, artistic expression and originality. (This is in addition to the ongoing debate about how to enforce copyright...!) I recently got drawn into this debate over on another photographer's blog, and felt like exploring the idea a bit further. So be warned: Random Philosophical Utterances (RPUs) alert!

Before we get into that, here are a few of the reasons I was absent from the blog for so long:

The miracle of Antelope Canyon, AZ; everyone should experience this at some point in their life.

Mother Nature is one heck of a sculptor! We cannot possibly match her stunning creativity.

Sunset at Majestic View in Zion Canyon, UT. Sometimes, if you're very lucky, a day of constant rain and complete cloud cover can end like this.

Copyright protection exists under the law so that an artist's creation cannot be stolen from him/her. An artist owns their own work and is entitled to benefit from its worth and use. This is a vital milestone in our society's cultural development which marks a huge improvement over historical practice.

However, even as we are beset by seemingly endless new challenges to copyright law in the digital age, is it possible that in some cases the concept of copyright is being stretched too far?

There was a lawsuit brought recently by one photographer (or their representatives) against another photographer, claiming copyright infringement based on the idea that Photographer B's images (too) closely resembled Photographer A's images. On examination, it is clear that Photographer B's images are of the same subjects, yet are undeniably different images. This raises an interesting set of questions.

Does the first person to photograph a sunset from the South Rim of the Grand Canyon own copyright to all such sunset images? Are all subsequent photographers who capture such an image infringing on that original shooter's copyright and lacking in all originality? Or is there a copyright on an artistic concept - such as a very specific series of images designed to capture the cultural heritage of a primitive people, or a specific way of processing and presenting images?

Obviously I think it's ridiculous to entertain the idea that the "first shooter" to take an image of, for example, the Grand Canyon would then own copyright on anything but their own image of that subject. Otherwise we'd all be out of luck, there would be almost nothing left to photograph, and who knows what room there would be for artistic expression in the natural world! Mother Nature (or God, if you lean that way) gives us endless opportunities to point our lenses at her works of art. Some of them are so special and so beautiful that they’ve become especially popular and attract more pairs of eyes. But the incredible, undeniable thing about humans is that every pair of eyes is unique and has a unique vision. Yet the mere existence of a lawsuit such as the one mentioned above, and the fact that it stirs as much debate as it does, indicates that copyright law needs yet more refinement. Our images are protected under the law as it currently exists, but intangibles such as artistic concept ("my historically significant series of images recording the lives of left-handed Irish tap dancers" or "my unique and specific methodology for post processing digital images using X, Y and Z software packages, resulting in My Distinct Look") are apparently still out in legal limbo.

The art of photography is perhaps lagging somewhat behind the other creative arts in some ways. As the old saying goes, imitation is the sincerest form of flattery and shouldn't necessarily be a reason for litigation. To illustrate the point using music as an example: someone recently commented jokingly about a modern composer being sued over copyright by a composer from a hundred years earlier – because the young fella was influenced by what came before and it showed in his work. But that’s exactly what happens with art and artists! We’re not scientists, recording data for database archival and once the data is recorded, that’s all anyone will ever need; we’re creative types who feed off the world around us, and that includes our colleagues and predecessors. We are all influenced by what came before, and our creativity is shaped and stimulated by the world we live in – and the other people in it. This is entirely natural, legitimate, and desirable – else why would we need music conservatories, dance academies, theater schools and so on? The other arts long ago recognized that such an atmosphere, with its concentrated interaction and influence, is a hotbed for creativity and artistic expression. Photography needs to catch up. Artistic inspiration – being inspired or influenced by someone else’s work – is not the same as removing someone’s watermark and passing the image off as your own.

As always, comments are welcome and encouraged.