aTypical Joe: a gay New Yorker living in the rural South

Tuesday, November 29, 2005

Photography & the copyfight

Larry Lessig puts tonight’s lecture on the history of photography in the context of the copyfight. From Free Culture:

[p. 33] [E]arly in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no.

The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was “taking” something from the person or building whose photograph he shotâ€"pirating something of value. Some even thought he was taking the target’s soul. Just as Disney was not free to take the pencils that his animators used to draw Mickey, so, too, should these photographers not be free to take images that they thought valuable.

On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view.  (Louis Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from private spaces.) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source.

Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no permission would be required before an image could be captured and shared with others. Instead, permission was presumed. Freedom was the default.  (The law would eventually craft an exception for famous people: commercial photographers who snap pictures of famous people for commercial purposes have more restrictions than the rest of us. But in the ordinary case, the image can be captured without clearing the rights to do the capturing.

We can only speculate about how photography would have developed had the law gone the other way.