ethics – Journey Through the Lens

Image on left: original photography by Patrick Cariou / Image on right: artwork by Richard Prince (Boucher, 2019)

This week our coursework looked at copyright and referred to the well documented copyright case of Cariou vs. Prince. French photographer Patrick Cariou opened a case against Richard Prince and his gallery, Gagosian, for copyright infringement. Prince, a well known appropriation artist had incorporated some of Cariou’s images from his book, Yes, Rasta, published in 2000, into his series of paintings and collages called Canal Zone, exhibited in 2008 at New York’s Gagosian Gallery .

The outcome of this landmark case in 2009 initially found in favour of Cariou, but then on appeal in 2013, found that Prince, the defendant, was free of any copyright infringement and this decision was based on the principle of ‘Fair Use’. Both the Warhol Foundation and the Robert Rauschenberg Foundation had filed briefs in the appeal case siding with Prince. “Their argument: the intellectual content and aesthetic meaning of works of art are not always visible to the naked eye without art-historical context. Their brief suggested that art historians, curators and other experts should have a say in the case”. (Boucher, 2019)

The principle of fair use, stipulates that the secondary use of an image must transform the original by using it in a different way or for a different purpose in order to create a new meaning, or message. “Whether or not art is transformative depends on how it may “reasonably be perceived” and not on the artist’s intentions. Even though Prince expressly stated he did not “have a message,” the court still found that most observers would see Prince’s “Canal Zone” as having a radically different purpose and aesthetic than Cariou’s “Yes Rasta” and that this was enough to make the work transformative”. Artist Rights. (2019)

This raises the question of what is considered ethical as there are a number of factors to be considered in this case, such as the financial impact – Prince made a significant amount of money with his series of ‘Canal Zone’, while Cariou as the original artist did not make much through the sales of his book. It raises the question of whether the appropriation of the images may have had a negative impact on the marketing of the original work.

Another important factor to consider is the length of time taken by the original artist to create the body of work. In Cariou’s case it took 6 years to create this body of work during which time he lived and worked alongside the Rastafarians in Jamaica building up the trust necessary to allow him to photograph them. Lastly, and most importantly, in the context of the Cariou vs. Prince case, I believe the question must be asked whether the subjects of the artwork were treated ethically and how they may have felt about the appropriation and subsequent use of the images.

In conclusion, this case highlights the fact that although the use of copyrighting indicates ownership of material, it doesn’t necessarily protect work from being utilised or re-purposed. If copyrighted work is used without permission, there would be legal grounds to open a court case to defend the work based on the copyright laws of a particular country. This would largely depend on whether or not one could afford such a case and then, should such a case goes to court, Fair Use would be applied in countries such as the USA and UK.

References:

Boucher, B. (2019). Landmark Copyright Lawsuit Cariou v. Prince is Settled. [online] ARTnews.com. Available at: https://www.artnews.com/art-in-america/features/landmark-copyright-lawsuit-cariou-v-prince-is-settled-59702/ [Accessed 3 Dec. 2019].

Artist Rights. (2019). Cariou v. Prince — Artist Rights. [online] Available at: http://www.artistrights.info/cariou-v-prince [Accessed 3 Dec. 2019].

Just as photography can have a positive social and political impact, so too there is equal potential for it to be used in negative ways. Issues around power, responsibility and ethics are extremely important areas for photographers to consider.

“Photographs really are experience captured, and the camera is the ideal arm of consciousness in its acquisitive mood. To photograph is to appropriate the thing photographed. It means putting oneself into a certain relation to the world that feels like knowledge — and, therefore, like power.” – Susan Sontag, On Photography, 1977, pg 3-4

Both commercial and documentary photography are fields that are frequently criticised for the objectification of the subject and the misuse of the way in which the subject is portrayed and, indeed, the sense of ownership that is attributed to both the image and the subject by the photographer or by the commercial institutions that gather and commission images. However, these are issues that are not solely confined to these specific fields and need to be considered in all areas of photography.

As photographers we need to consider very carefully why we are choosing to take a photograph of a particular subject and why we choose to take it at a particular moment in time. The moment of decision and the selection of a particular moment in time to capture, is in itself an act of power. The concept of the decisive moment was first proposed by Henri Cartier-Bresson in 1952 and has since been largely misunderstood by photographers and photojournalists as being a technique to be employed in the pursuit of the perfect image rather than a reference to the sensitivity that is required by the photographer in deciding when to take an image.

“His work, widely published in magazines and in a series of superb books, only rarely reported newsworthy events. It provided, rather, a broad description of a place, its people and culture, and the texture of its everyday life. And it helped create the image of the photojournalist as an alert and sympathetic, but also knowing and detached, observer — an image that dovetailed neatly with the notion of the “decisive moment” and in the process limited its meaning. Under the rubric of photojournalism, the decisive moment is not only a pictorial climax that yields a satisfying photograph but also a narrative climax that reveals a truth about the subject.” – Peter Galassi, Henri Cartier-Bresson: The Early Work, Peter Galassi, pg 9

We also always need to remember that without context an image can be misused or misrepresented, therefore, as photographers we need to consider very carefully how an image can be interpreted, or misrepresented outside of the original context and meaning. We have to take responsibility for how the subject is portrayed and how the image could be used, manipulated or interpreted.

An example of this is photojournalist Jeff Mitchell’s image of refugees crossing from Croatia to Slovenia in October 2015 which was used controversially by the UK Independent Party during the 2016 referendum campaign to leave the European Union. This is discussed in greater detail in an interview published in The Guardian newspaper which can be viewed here.

Refugees cross from Croatia into Slovenia in October 2015 (c) Jeff Mitchell/Getty Images https://goo.gl/gtrmU6

This is not to enter into political discussion or to debate this particular incident, nor is it a criticism of Jeff Mitchell who I do not believe anticipated such a use of his image. Rather, this is to emphasise that as photographers we have to consider very carefully where we sell our work and just how much ownership of it we are prepared to give away. We always have a moral and ethical responsibility that is implicit in our work which means we need to be aware of the nature of any contracts we enter into, whilst also being aware of the power of the image and the way it could be used.

References: Galassi, P. (1987). Henri Cartier-Bresson: The Early Work. New York: The Museum of Modern Art. Sontag, S. (1977). On Photography. London: Penguin Books The Guardian: https://www.theguardian.com/artanddesign/2016/jun/22/jeff-mitchells-best-shot-the-column-of-marching-refugees-used-in-ukips-brexit-campaign

Journey Through the Lens

Tag: ethics

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