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« Encore Haydn | Main | Elsewhere »

January 19, 2005

Bryan on Digital Originals

Michael Blowhard writes:

Dear Blowhards --

In a recent posting and commentsfest about photography, a bunch of us started wondering about photography and the question of the "original" work of art. What's the original of a photograph? The picture's negative? A specific print of the negative? And how does digital-photography -- based as it is on endlessly-reproducible electronic files -- change any of these notions?

Visitor Bryan Castaneda noticed this discussion and wrote me an interesting email. I asked Bryan if I could reprint his note on the blog, and was glad when he agreed. Here's Bryan:

I recently got into a debate on just this issue. Friends of ours are getting married and the bride was shopping for a wedding photographer. She figured that in this digital era she could find a photographer who would supply not only prints of the wedding, but a CD-ROM of the photos, too.

Apparently among professionals this is definitely NOT standard practice. Just as in the era of film cameras a photographer NEVER gave out his negatives, now digital photographers NEVER give out the digitals files. When my friend protested, one of the photographers she was gonna hired gave her the "I'm an artist" line and that was that. Professional photographers, being artists, do not under any circumstances turn over their negatives.

I brought this issue up with my photographer girlfriend.

"But aren't digital photos significantly different than photos from film?"

"No, the digital file is like the negative. You don't give up your negative."

"But it's NOT like a negative. A film negative is unique, a digital file is different enough that they're not analagous. Why shouldn't someone who spends hundreds of dollars to hire a photographer get digital copies of the photos they paid for?"

In the old days a significant revenue stream for photograhers was making additional copies of the prints. I mean, inevitably someone wants more copies of a handful of photos and since the photographer had the only negative, you HAD to go back to him. With a digital file and color ink jet, that's no longer the case.

I understand that photographers have to protect their business, but it seems to me that they should just charge MORE for digital copies of their photos.

Another issue that bothered me was the whole "I'm an artist" defense. I hire a photographer which means that I'm hiring them for their artistic eye, yes. But aren't they being suitably compensated? How is it they're allowed to keep the negatives that someone paid for? When Rockefeller hired Rivera to paint a mural, that mural became the property of Rockefeller.

"What if they want to use that photo for their advertising or for their portfolio," my girlfriend asked.

Now, I guess if only one negative existed that might be a problem, but that's no longer the case with digital. Perhaps I'm wrong, but this seems to be a case of an old business failing to adapt to a new technology. The digital revolution may be inevitable, but some are trying very hard to ignore that it's happened.

Bryan and I would both be curious to hear people's thoughts about these questions. We'd love to hear about other people's first-hand experiences with the whole digital-originals question too.

My thanks to Bryan Castaneda.

Best,

Michael

posted by Michael at January 19, 2005




Comments

It strikes me that photographers and other producers of intellectual property have an abiding misunderstanding of the term "work for hire". I believe that it is a basic feature of contract law that if I hire a person to do a job (write a technical manual, for instance), then I own his work product (a legal term of art) when the job is done and he is paid. Explicit contractual agreements can change this; it is at least possible that industry standards could also change this, but I am not a lawyer.

I know that this has come up in the context of medical records (I don't know the result of the suit), but I don't know whether it has been litigated as regards photographs.

It is my understanding that this is what drives the billing method used for school photographs, mall Santa Claus photographs, etc. Specifically, they usually take the photo on spec, then offer to sell prints. As they are not compensated in advance, the photos are not "work product" as referred to above.

Again, I am not a lawyer, but as a practical matter, with the drop in prices of decent scanners and rise in quality of photo printers, there isn't much a photographer could normally do. I will note that if the photographer owns the copyright to the photo, then he also owns the copyright to any derivative work (another legal term of art).

Finally, if you need real legal advice, don't rely on this, talk to an intellectual property lawyer; it's a quagmire.

Posted by: Doug Sundseth on January 19, 2005 08:41 PM



It is a little more subtle than that.

The default position is that an employer (ie a contract of service) owns the copyright of works created by an employee.

The position with an independent contractor (ie a contract for services) is that the contractor owns the intellectual property.

Of course, all of this can be modified by contract (and often is - for example where a person hires independent contractors to develop software - the person will usually obtain at least a licence to use that software - either expressly or by implication).

So the answer to the question of the photographer, ignoring the vapid posturing about being an artist (of wedding photos?) is that you have to use your bargaining power to get the digital copy or intellectual property in the photo.

All that you normally buy from a wedding photographer is the actual photo. This then raises the related issue in the discussion - moral rights. Moral rights are a statutory creation which prevent subsequent owners of art from doing things inconsistent with the artist's dignity - so Rockefeller would have been in breach had they been around then (however laudable his actions). One advantage is, I suppose, that it would prevent the Nazi Entartete Kunst exhibition and book burning from happening (or at least provide a legal remedy), but it is a very continental, statist solution (with dubious intellectual and theoretical underpinnings - as with most continental statism).

It is very easy for an artist to retain such rights in the contract of sale - all of the Aboriginal paintings I buy retain copyright in the artist (there has been inappropriate use of Aboriginal art in the past). Of course, it is a free market - if I don't like that, I don't buy.

Posted by: Toby on January 19, 2005 09:03 PM



Doug:

My girlfriend was a school photographer for a while, and during the course of the discussion we had, she mentioned a blatant case of attempted theft. She had set up her equipment, the backdrop, posed the family and then another family member not being photographed tried to take a picture with his pocket digital. Her and her co-workers protested that this wasn't allowed and the man became incensed.

In a case like that, I'm totally on her side. Whether the gentleman realized it or not, he was stealing from them. He coulda taken a few pics and then not paid for any prints from her company. Thus her and her co-workers woulda been laboring for free.

The distinction you made about "working for hire" and "working on spec" is a useful one.

Posted by: Bryan on January 19, 2005 09:16 PM



Thinking long-term with digital poses a couple challenges:

You can count on the fingers of one hand the inkjet printers that produce prints that will last more than a couple years. (They use pigment-based inks instead of dyes.)

You can count on the fingers of one hand the CD-R manufacturers who make CD-R media that will last more than a couple years.

So if my wedding photographer is shooting digital, I want to make sure that this person is technically savvy enough to a) make prints that will last a long time b) store the "negatives" in a way that they can be retrieved in 20 years. (Not only must you safeguard data integrity, but you also have to be able to open the file format... can you open the digital files you created 20 years ago? The best way is to have the digital images printed onto slides.) If I didn't feel the photographer was up to the task, I'd feel very entitled to the digital files for my own safekeeping.

Posted by: Rob Asumendi on January 19, 2005 09:43 PM



Grrr. Solution to problem:

Step one. Get a digital camera.
Step two. Point it at bride.
Step three. Press button on camera.

There. You just saved 500+ dollars. And you get the digital.

Posted by: onetwothree on January 19, 2005 11:47 PM



I won't go into the contractual and revenue protection questions, but there's another very important issue:

A raw digital file from a camera is analogous to a negative in the sense that it is not normally print-ready. There's quite a lot of technical skill and aesthetic judgement that goes in between having a raw file on a card, and having a quality print on paper.

I wouldn't give images on which my professional reputation depended to somebody who's going to process them incompetently, print them badly and show the resulting junk to somebody as if it were my work.

Posted by: Alan Little on January 20, 2005 05:34 AM



Good gravy. Digital wedding photography smells like an awesome business plan for a hardworking youth.

Posted by: Scott Chaffin on January 20, 2005 10:21 AM



It is also the case that with the proliferation of scanners and home printers many people will try to circumvent the process by duplicating the proofs or buying the absolute minimum package and do their own printing. Which takes income directly from the artist.

Alan also makes a very good point about the digital negative. Think of Ansel Adam's zone system. It includes three basic steps, exposure, development and printing. There is technique that must be applied in all steps to achieve the end result. I'd be very hestiant to simply distribute negatives and allow the consumer to take over the last step.

One final point, there are other ways to share images and supply the customer with a better digital experience. I'm thinking of things like presentations created in PDF that have file security to prevent printing. These can be shared the way one would share a wedding video. Also digital photo albums for viewing on screen. Lower resolution images can be used and the images can have a digital watermark, both of which makes them less suitable for printing, but perfectly fine for viewing on a computer or DVD.

Posted by: Rick Coencas on January 20, 2005 10:38 AM



Re RAW camera images:

This would be the absolute worst file format to give someone anyhow. Each camera manufacturer has its own file format for RAW and these will be the first forgotten. It's true that the RAW files are very far from the finished product, so they wouldn't be of much use to the average consumer anyhow. Ask for TIFFs of the final photos you end up buying.

Posted by: Rob Asumendi on January 20, 2005 11:55 AM



My husband has been a professional photographer for more than a decade and when he shot film, he gave the negatives to the couple a year after the wedding, and now that he shoots digital, he gives the images on CD.

And I know from him there's not much you can do to prevent family members with point-and-shoots to take their own photos. One common trick is for the photographer to walk into the posed group immediately after the photo is taken so that others can't get the image. But really, any photographer who is worried about competition from an amateur isn't much of a photographer.

Posted by: beloml on January 21, 2005 12:29 AM



RAWs are what you need, not TIFFs. iPhoto now imports RAWs just fine, and I'm sure many other photo management programs do, as well. Free software from Adobe converts RAWs to their new, open "Digital Negative" format. When that takes off, it'll be the norm.

But there is no way in hell, either way, that a jpeg is like a negative, and any photographer that doesn't know that isn't worth hiring.

Posted by: John on January 22, 2005 12:44 PM






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