Photography, Art, and Copyright

Has technology brought us so close to reality that we have arrived at copyright’s vanishing point?

Today’s Times carries a long profile of Clifford Ross, who has developed a camera capable of producing images of extraordinary — even unprecedented — clarity. Ross’s work has been making the rounds of the photography community for several months — and generating some skepticism (see the comments to this blog post) about whether his photographs are “real”. (They’re photoshopped, as a boingboing reader points out, but that’s to enhance their authenticity, if I understand the process correctly.)

What Clifford Ross is doing raises some fascinating copyright questions. First: Are his photographs protected by copyright? Conventional wisdom holds that the copyrightability of photographs is well-established — despite the fact that photos, in a sense, merely “reproducing” the world. But the hyperrealism of these new photographs strikes me as different. On the one hand, there’s no doubt that Clifford Ross is an artist. He trained as an artist. He exhibits in places where artists exhibit. The public views him as an artist. The process of producing his extraordinary photographs is exacting in the extreme. On the other hand, what he produces in these photographs is so uncannily authentic that it raises national security concerns (this, it seems, is what prompted the meeting in New York that triggered the Times piece). Copyright in photographs was justified initially by the idea that a photograph represents the “intellectual conception” of the photographer. Where the “work” so closely mimics the natural world that it represents absolutely nothing more than nature itself, though, can there be any “intellectual conception” at all? Is there any “originality,” any minimal variation between what the “author” found and what the author produced, protectible by copyright? Ordinarily, one artist’s intellectual conceptions don’t have national security implications.

Second, and assuming that Clifford Ross’s photographs are somehow copyrightable, what would constitute infringement? The very artistic point of the photographs, their worth as art, lies in the extraordinary resolution achievable only via Clifford Ross’s own process. The originals are also extraordinarily large. But set size aside, and set aside infringement of the public display right. Assume that I could manage to obtain an original and “reproduce” it using a digital scanner or high-resolution photocopier. This could not be literal reproduction; by definition, literal reproduction could not be achieved except via Ross’s process itself. Is it reproduction via a substantially similar copy? Or via preparation of a derivative work? Perhaps, since the contents of the images would be comparable. But would there be an injury to Clifford Ross? Presumably, as an artist, he is motivated economically by the ability to sell copies of his original art works. Low-res copies can’t cut into that potential income, because they can’t substitute for the real thing. Ross might argue, hypothetically, that derivative markets (posters of his photographs, for example) are economically significant simply for the income they would produce. But does that income have anything meaningful to do with the incentive function related to the original photographs? IOW, would depriving Ross of that income (by finding no infringement in this hypothetical case) impair his incentive to produce in any way? I’m skeptical; as the Times article makes absolutely clear, the very point of the art is the high-res version itself, and only the high-res version.

Update: C.E. Petit at Scrivener’s Error has more thoughts on photographs and copyright.

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