Wednesday is Ask an Art Buyer day. Send your questions to email@example.com with the subject line Ask an Art Buyer. I’ll answer as many as I can every Wednesday.
Jason Wills asks:
I stumbled upon your blog today and have been reading it for the last couple of hours. I thank you for the rich content and insight you bring to the blog. I was reading the copyright article and have a simple question: I was wondering that if you are using photoshop in post production to alter the image, could you not be then considered an illustrator and be covered under copyright protection of an illustrator or mixed media artist. With fashion especially, the amount of retouching from changing backgrounds, colors creating a subject from a composite of body parts etc etc. At what point is the image enough of an abstraction from the original that it no longer is a photograph per se? Just because the image looks realistic it is many times removed from the original image captured.
This is a question that comes up every once and awhile and for which there still isn’t a definitive answer. Increasingly, we depend on the retoucher to make the shot work and yet they don’t get credit at awards shows nor do they participate in the success of the campaign through usage and relicensing fees.
But, that may be changing. Apparently uber high-end retoucher Pascal Dangin charges usage fees on the work done by his company Box Studios. Although none of the AB’s I talked to had experienced this in a traditional retouching context, a CGI job I did with Taylor James a few years back saw the “photography” part relegated to the margins of the production- basically work for hire. But I did pay a license fee to Taylor James for the final files.
It seems to me that it’s only a matter of time before retouchers will start charging usage fees. Without question, when a photograph is heavily manipulated in post, the original intellectual property might be changed enough to allow another intellect to stake a claim on the property.
I found an old thread about the primacy of retouching on APE, here. From the discussion:
Just to throw a copyright monkey wrench into the equation there is a legal leg that retouchers can stand on depending on the extent they apply interpretive artist changes to an image, and maybe even two legs if they take a variety of elements to assemble a new work. A new work is a new work in the eyes of copyright law, like it or not. Unless a photographer has the retoucher sign a waiver to their interests in a copyright to the new work, the legs are strong.
I also asked Chris Raedcher from Jack Griffin about their approach to this question:
Being recognized for our contribution to the final image is more important than owning it to us. We create a very unique custom product for our client that only works for them, and they pay us accordingly. It couldn’t ever be re-purposed for another client. We think building good-will with our clients for being concise and precise with our billing is more beneficial to us in the long term. And, our philosophy is to be invisible to the process, so claiming ownership of an image is contrary to that. Photographers are both our clients and our partners (when we bring them on to work on a project) so it would seem a little like we were mowing their lawns if we were out there competing with them for image-creation rights.
So long as we are contracted to assist in the execution of an idea that someone else came up with, instead of actually creating it ourselves, I don’t see that changing. That said, we have discussed sharing rights to stock imagery for which we have both helped with the concept and reduced or waived our fees. So I guess I’ll have to qualify all that I’ve just said with that.
I think the reality of the situation is this: if you have clout like Box Studios, you can charge whatever you want. Otherwise, even if you have legal recourse to argue that you are creating a “new” piece of art, it’s doubtful that the market will bear this shift in the short term. And, as Chris suggests, there may be political ramifications from an insistence on fighting over copyright with photographers.
Nevertheless, I think this question will persist and as more retouchers are establishing their place at the apex of image creation, especially when they are valued for their particular artistic skill and style, copyright may begin to shift from photographer to retoucher. Where to draw this line (the image is made up of 62 layers and is compositted of over 39 shots, is that enough to claim ownership?) is anyone’s guess.