The Changing Media Landscape

This is a video I produced of a panel discussion held in Spokane Washington about the impact the Internet is having on our local legacy media and journalism in particular.

The panelist included:
Ryan Pitts, Spokesman Review Newspaper
Luke Baumgarten, Pacific Northwest Inlander Weekly
John Orr, KYRS Radio
Cheryl-Anne Milsap, Spokane Metro Magazine
James McPherson, Professor at Whitworth University

A Comparison of Digital & Traditional Photography

Digital photography (also referred to as Digital Imaging) and traditional film based photography are similar but distinctly separate mediums.

Digital imaging may utilize a paradigm similar to traditional film based photography, but as Fred Ritchin writes in his book “After Photography” digital photography is a Trojan Horse of sorts that deserves to be understood as a distinct media unlike traditional photography.

To understand the differences between digital and traditional photography we need to remind ourselves that there is always a distinction between what we see and what we know. We see the sun go around the earth but we know the earth rotates around the sun (Berger). When we look at a digital camera we see what appears at first glance to be a camera complete with shutter and aperture controls. Digital point and shoot cameras even add a film advance sound effect to complete the disguise. The digital camera has more in common with a video camera than a film based camera. The formation of an image is not a physical process where light creates the latent image through the modification of silver halide crystals. Instead photons are simply counted and tabulated as data that is easily revised and edited without any trace.

In trying to analyze the discrete differences between photography and digital imaging based upon a photographic paradigm I found myself making comparisons between the John Szarkowski’s book “the Photographer’s Eye” and Fred Ritchin’s book “After Photography”. Szarkowski describes the attributes of photography with these five characteristics:

1. The thing itself. – Photographs deal with the actual subject before the camera.
2. The detail. – Photography is tied to the facts of things. It has “compelling clarity”
3. The Frame. – A photograph is selected, not conceived. The photographer’s subject is never self-contained. The edges of the photograph surround what the photographer saw as being most important, but in reality the subject extended beyond the frame. By isolating the subject or subjects from their surroundings new relationships are formed. A person walking down the street who has no relation to anyone else in the seen is suddenly forced into a visual relationship with the person sitting on the stoop because the photographer has chosen to frame the two together.
4. Time – Photographs are time exposures and describe discrete parcels of time. “While freezing time, the photographer “discovered that there was a pleasure and a beauty in this fragmenting of time that had little to do with what was happening. It had rather to do with the seeing the patterning of lines and shapes previously concealed.” Cartier-Bresson called this approach to seeing “the decisive moment”.
5. Vantage point. - Photographs provide us new views of the world. Think of aerial photography, macro photography.

In contrast to Szarkowski, Ritchin argues that digital photography no longer serves what Susan Sontag describes as a “stenographic function”. Whereas Roland Barthes argued that photography was limited to its denotative meaning a “message without a code”, digital photography shares more in common with appropriation art that combines visual elements so seamlessly that one could take preexisting images from a vacation destination and digitally insert their family into the image so perfectly so as to not even need to bother bringing a camera along for the trip!

The pixel based image is one that is not fixed. It is data that can be copied, replaced, destroyed, or removed from its context altogether and recombined with other data. It is infinitely reproducible without generation loss and therefore lacks verifiable orgin.

Szarkowski and Ritchin both agree that traditional photography is tied to the facts of things. Ritchin explans, “the photograph, with its mechanical bias, was seen as such a useful arbiter of reality”. Barthes offered that a photograph supplied irrefuteable facts that the subject existed before the lens. However, many a contemporary YouTube video has demonstrated that an artist utilizing pixel editing software can recreate a photographic illusion that may be output back to traditional photographic material without any ability to be authenticated. It is perhaps here that Ritchin paints the bleakest and most profound difference between digital and traditional photography. Ritchin points out that digital photography has been around for over thirty years and the first widely published example of a digitally modified image that was suppose to represent fact was the 1982 National Geographic cover image of the pyramids in Egypt. The original photograph was altered to arrange two pyramids closer together. We have observed numerous examples of the crisis in journalism as standards of representation have slid in the face of our technological ability to construct the image we imagine rather than the one that was in front of the camera for the split moment the shutter was released.

This moves us to the third distinction between Szarkowski’s definition of traditional photography and digital photography. A traditional photography is selected through framing, not conceived. Digital photography offers the imagemaker unlimited ability to construct an image. Fred Ritchin writes, “Increasingly, much of the photographic process will occur after the shutter is released. The photograph becomes the initial research, an image draft, as vulnerable to modification as it has always been to recontextualization.”

Traditional photography has always been tied to a moment in time. A signifier of the death of the person portrayed, an optically perfect representation of history. Digital photography on the other hand is completely displaced from time and context. Historic images may be combined with new and vice versa. Perfect duplication removes the certainty of orgin or authorship, and the ability to construct the imagined image removes photography from its past or present and offers us a means for expressing the future. One need only suspend their disbelief long enough to enjoy a CGI movie at a theatre that portrays the imagined future to see the potential for perfect illusion.

The final comparison to Szarkowski concerns vantage point. While one could argue that digital shares the same aspect of vantage point when it starts with a camera based image acquisition, but I also think of vantage point as being related to context and the testimony of the photographer that the photograph is a record of what they saw. Digital photography with its indeterminate authorship, is completely without fixed context. A digital photograph can take the subject of an image and place it in a completely different context, much as a photograph that is originally presented in a gallery with a caption that explains the event depicted can be maliciously presented in a magazine article. Images like Sally Mann’s photographs of her children can be dislocated from their original context and be recoded as pornography by cultural groups that would utilize it this way. A photograph by Ansel Adams suddenly becomes part of an advertisement for a vacation housing development.

Whereas Szarkowski stated we can look at photographs as “mirrors and windows”. Mirrors tell us about the artist and Windows tell us about the world. I think digital photography is limited to being a reflection of the artist and the imagined world. I find myself seeing digital photography as being a process that has reduced the average person’s world view to that of simulation. We are living in a time where the average person with their myspace and facebook accounts is surrounding by mirrors that reflect back whatever desire and pleasure we imagine, predominantly in the “perfect image” world of cinema and visual media where every celebrity has a personal image retoucher.

Whereas the era of analog film based photography offered the world a window into seeing that was more powerful than the verbal testimony of an eye witness. It seems that the industrial age’s quest for knowledge has moved into the digital age where knowledge is no longer an external goal but an internal expression.

Perhaps the greatest risk generated by digital photography is that we ignore the plight of the real world, choosing instead to accept the fictionalized and imagined cgi graphic and thus abdicate our community responsibilities. Writing in Aperture, Geoffrey Batchen states, “it is not a coincidence that ‘hyper-photography’ has come into being in an age marked by volumes of information, where the dreams and hallucinations of television and Wall Street have enveloped society and become more real than the depletion of trees in the forest.”

Digital offers only simulation of the real without direct reference offers instead of knowledge only as Ritchin observes “conceit”. I think a strong case can be made for a renewed appreciation for photography’s simpler representation of the physical world through physical means. We can see the plight of journalism in the digital age, which has reduced its function to entertainment. We have returned to the world where the eyewitness account (oral testimony) is not acceptable and easily ignored. Massacres it is argued do not exist without photographic documentation. However in the digital realm where the stenographic qualities of the photograph are displaced as is time and space, there are no massacres, only a constant drama that “serves to sell untold billions of dollars of reassurance and diverting advertising.”

While photographs have always been manipulated, the difficulty it once took associated photography with a sense of believability that was supreme among all forms of representation. Whereas one might dispute the validity of photography, one must view all digital photographs with skepticism.

This is not to say that digital photography is not without its own merit. In fact that is the whole point of my argument. In this era of digital mashups, it is important to develop a greater level of media literacy that enables us to see and know the difference between the digital image and the traditional photograph so we might celebrate each for its distinct contributions.

Vicki Goldberg, in The New York Times, comments “perhaps photographers who manufacture ambiguous facts and fictions disguised as truths have got it exactly right; perhaps they are telling it the way it really is. Maybe photographs are not lying even when they skitter along the thin edge between real life and theater. Rather, they uncover the secret stories, mythic constructions and uncertainties that constitute our lives. We are in for some serious rethinking of photographic theories of representation, especially when it concerns the documentary tradition. The computer is an excellent tool to mitigate our limitations and to expand our expressive potential.”

William Mitchell, writing in The Reconfigured Eye, expresses his optimism: “a medium that privileges fragmentation, indeterminacy, and heterogeneity and that emphasizes process or performance rather than the finished art object will be seen by many as no bad thing. Protagonists of the institutions of journalism with their interest in being trusted, of the legal system, with their need for probable reliable evidence, and of science, with their foundational faith in the recording instrument, may well fight hard to maintain the hegemony of the standard photographic image – but others will see the emergence of digital imaging as a welcome opportunity to expose the aporias in photography’s construction of the visual world, to deconstruct the very ideas of photographic objectivity and closure, and to resist what has become an increasingly sclerotic pictorial tradition.”

And Ritchin further expresses this modern world by writing, “The alteration of the phenotype, modifying body parts and exchanging them among the people depicted is symptomatic of the transition from a focus on the visible world illuminated by the play of light and shadow, to experimenting with his coded being, or DNA. These media strategies begin to acknowledge the evolution of humanity from sentient being to social signifiers.”

Furthermore, digital photography is not restricted to the single image but can become a pathway or mosaic of meanings. Unlike the fixed syntagmatic structure of film and printed text, the digital image presented on the web becomes a non-linear exploration of meaning, with one pixel leading to the next. Ritchin describes websites such as the Bosnia: Uncertain Paths to Peace which offer more complex paths to meaning than the metanarrative offered in a textbook.

Over the course of this semester we have realized an exit from the world of photographic document. We live in a world that can no longer point to authorship and original document, and therefore we will need to rewrite the copyright laws to address the digital reality of data versus tactile expression. Technology enables us all to manipulate the data through remixing. Stuart Hall showed us in the 60’s that natural function of culture is to re-contextualize or “recode” the objects of culture and to make it their own. Digital tools and the Internet make it possible to reconfigure any digital form of expression into our own.

To think of copyright protection we have to acknowledge the difference between the physical expression and the digital data. As I wrote in my midterm about copyright “Feist Publications, Inc. v. Rural Telephone Service Company, Inc. In this case the Supreme Court ruled that the collection of data in a phone book did not warrant copyright protection.
...In Feist, the Supreme Court rejected the "sweat of the brow"
doctrine that provided copyright protection for databases and
compilation based upon the effort use to created the compilation.
Instead, the court decided that compilations and databases are
protected by copyright only when they are arranged and selected in an
original manner. Although the level of originality needed is not very
high, the white pages of a phone books are not protectable because the
selection of the data (all customers in a geographic area) and the
arrangement of the data (in alphabetical order) were not sufficiently
original as to come under the protection of the Copyright Act.

The internet, with its infinite mp3 and jpeg files is providing the cultural data that society uses to process their world into meaning. Pixels exists as letters of an alphabet. We cannot protect words, or their derivatives.

The biggest challenge we face with copyright law is our continued insistence on protecting derivative works. I think one has to acknowledge that all original thought is a derivative from a previous idea. Hollywood could not make a action film if someone enforced a copyright over Homer’s Odyssey.

The infinite malleability of digital image information precludes it from being protected in the same manner a photographic print could be protected in a previous era.I think a more reasonable approach would be to establish a litmus test that asks these two questions.

1. Are You Creating Something New or Just Copying?
2. Are You Competing With the Source You're Copying From?

If you are creating something new and you are not competing with the source you are copying from, then it should fall under fair use.


A thing is not what you say it is or what you photograph it to be or what you paint it to be or what you sculpt it to be. Words, photographs, paintings, and sculptures are symbols of what you see, think, and feel things to be, but they are not the things themselves. -Wynn Bullock

References:
Roland Barthes, Camera Lucida
John Berger, Ways of Seeing
Mara Kurtz, "Seeing is No Longer Believing: Images in the Digital Age."
Fred Ritchin, After Photography
John Szarkowski, The Photographers Eye
Ben Tibbs, “This is not a plane crash”

How can copyright exist in the digital era?

"Believe it or Not?"
How can copyright exist in the digital era?

Remix, mash-up, Web 2.0, and user-generated content are all common forms of expression in contemporary society. The 21st century world is one where digital expression of information is becoming indistinguishable from the data it is expressing. “Digital Media translate everything into data, waiting for an author or an audience (or machine) to reconstitute it. Images can be output as music or music turned into text, or created by an algorithm, or transformed by an anonymnous and far flung chain of spectators.” (Ritchin, 2009) Audio sampling reveals the basic code of music and pixels converted into RGB numeric data reveal the information embedded in a photograph. Can we continue to try to protect music and photographs with copyright laws in this digital era? Who owns intellectual property in a virtual world? Recent court cases involving Shepherd Fairey and Jeff Coons are raising the issue of whether or not copyright laws that served to promote creativity in the 20th century may be stifling it in the 21st century.

In order to understand the issues in contention we need to look at what copyright is. Essentially copyright is a set of rights granted to the author of a creative work (book, photograph, film, music, play, etc) at the time of creation. Copyright gives the author control over their creation by giving them exclusive rights to: perform, display, reproduce, distribute, and create derivative works. The importance of copyright laws is that it establishes an intellectual property whose value can be used to provide incentive for further creative production and it protects the artist by establishing a certain amount of independence from the patron who does not have control over content unless it is explicitly transferred in writing. Copyright laws are complex because they are designed to also protect society’s ability maintain free speech. Embedded within copyright law are provisions for the "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."

Artists and news media have a long history of reproducing copyrighted works legally under the principle of “fair use”. Art from the beginning of the 20th century began incorporating copyrighted works as part of a re-contextualizing of objects. Marcel Duchamp’s ready-mades brought non-art objects into the world art as social commentary. Arthur Danto argued that Art had become Philosophy when Warhol elected to exhibit a box of Brillo pads in a museum. As art moved from modernistic ideals into postmodern philosophy, appropriation of copyrighted works became commonplace. Robert Rauschenberg’s “combines” and large lithographs and screen-prints utilized cultural artifacts from newspapers and magazines to reframe social conversations. Andy Warhol is perhaps the most well known artist to appropriate imagery in his adaptations of photographs of Marilyn Monroe and Jacqueline Onasis. In the 20th century, appropriation art was restricted to either collage of physical objects such as a cut out of a newspaper article or photograph, or a transformation of image from one media to another such as Warhols transformation of black and white photographs into silk screens and Rauschenberg’s direct image transfers.

The use of copyrighted materials in the highly insulated and relatively obscure world of “high” art culture populated by museums and galleries is an altogether different world than the one we live in on the internet. While art has commonly made superstars out of its appropriation artists, the concept of limited editions has served to restrict the direct competition with the original artwork. News media has always been allowed to generate a profit while enjoying free speech privileges. Free speech has been protected but commercial exploitation is not. The Internet seems to have lost its academic roots and become an ocean of consumerism whereby everything is seen as a potential commodity to be exploited for profit.

By 1981 Rauschenberg had decided to abandon image appropriation due to a lawsuit brought against him for copyright infringement. It seems his financial success had made him a target for litigation because his art had become commodity due in part to its very mechanical nature that lends itself to mass reproduction. Warhol’s estate has also been subjected to paying out legal settlements. Art in the age of mass reproduction is no longer considered a unique expression that is transformative, but rather is deemed commodity with massive profit potential.

So how do we evaluate digital appropriation and digital collage? When a magazine hires a graphic artist to create an illustration for their magazine cover is it okay for the artist to appropriate multiple copyrighted images (the photograph no longer exists in the post film era) and claim authorship over this new compilation? Can the issues debated in the last century be arguments for these new variations? Let’s take a look at a hypothetical scenario.
You are an art director for The New York Times Magazine and have commissioned a photo illustration to accompany a short article about exercise equipment and the proliferation of home gyms.

The artist you have hired sends you a funny, collaged image showing a laundry room that now also serves as a gym. It contains an amusing visual mix of appliances and exercise equipment. We see underwear drying on the Nordic Track, a woman stretched across both washing machine and dryer doing pushups, stockings and bras hanging off a treadmill, etc.

When you ask the artist if there is anything to be concerned about in terms of copyright, he says "No problem. I simply found a great room in an old book of Wegman photographs, turned it on its side, then flopped it. I used Photoshop to eliminate all of the furniture and the dogs, changed the colors of the walls, put in a rug from a House Beautiful magazine editorial on beach houses, then created a large table by cloning a piece of the floor... I changed the view through the windows, added curtains (and changed their color) from a Pottery Barn catalog, and used a photograph of a cool girl doing sit-ups that I found on Facebook (I changed the length of her shorts and the color of her hair and made her taller). Finally, I scanned in some images of gym equipment that I found in an exercise magazine and borrowed a few kitchen appliances from ads in some of my mom's old copies of Good Housekeeping. I used Photoshop layers to add everything to the room image. When I got finished it was mine! Believe me, no one will ever know the difference, and anyway, its art."

This scenario is ripe for debate because it deals with the very issues of fair use, art, editorial content, derivative works, adaptation, and transformation. Let’s take a look at each of these. First of all let’s look at fair use issues. A magazine, a book, or a museum exhibition are generally considered editorial frameworks and offer a sort of safe haven from copyright issues. A photographer who photographs an image in a public space can exhibit their work in any of these venues without it being considered an infringement on the copyright of peoples’ likeness or property because we value the protection of the “publics need to know”. These graphical representations are generally restricted to the transmission or depictions of actual events or a compilation that provides for “parody, or criticism”. The simple duplication of an image is not sufficient to justify protection under fair use.

In the 2006 ruling by the U.S. Court of Appeals, the justices established current standards for the fair use of copyrighted images based upon the principle of “transformation”. The court stated Koons appropriation of Andrea Blanch’s photograph transformed it because it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message."

But hold on a minute, should someone else be able to profit from the creation of a derivative work based in part upon my original work? Doesn’t this harm the incentive for working in the media arts? Collage or compilations can be copyrighted but they do not void the original copyright of the elements that are incorporated in the new work. The right to create derivative works rest solely with the original author unless the work is deemed sufficiently transformative to merit a free speech argument. In our scenario of the magazine illustration, I would have grave concerns over the designer’s attitude about their collage image. The responses from the designer seem to lack sufficient socially aware commentary. I am reminded of Paul Strands caution when photographing street people. He said “the (photographers) intent must be sufficiently humane to warrant the intrusion.

Although I can see legitimate arguments for seeing this collage as an infringement on multiple authors, the process utilized to transform the image along with the publishers editorial content attached with the image is sufficient in my mind to warrant a judgment that the collage is a transformation of the original into something new that is providing cultural criticism.

This transformational quality is at the very heart of user generated content and mashups. Society now has the tools of production necessary to download, reconstruct, and retransmit a totally new idea that is attached to original content. Fred Ritchin writes in his book After Photography , “Increasingly, much of the photographic process will occur after the shutter is released. The photograph becomes the initial research, an image draft, as vulnerable to modification as it has always been to recontextualization.” In text based literature we have allowed for the “quoting” of facts from original sources with appropriate attribution. It seems as if we are slow to recognize that a photograph and a song are literary texts worthy of “quotation” and reinterpretation. It is a natural human trait to take the parts and reconstruct them into new wholes. Stuart Hall showed us in the 60’s that natural function of culture is to re-contextualize or “recode” the objects of culture and to make it their own. We see this in oppressed subcultures. Symbols and signs take on new meanings. The Zoot Suit riots are an example of this from the Forties. Mexican Americans staked their claim through their protests of war rations on fabric to make a social statement about their 2nd class treatment by the dominant culture that expected them to serve in the army and fight to maintain the existing hegemony that was marginalizing them. They took the very symbol of white executive supremacy and recoded it into their own stylish symbol of pride.

The digital media world is transforming the whole issue of copyright. When a photograph can be seen as pixel data and sound referred to by its digital information, can the original expression remain unique? Is the publication of expression on the Internet making it “common-knowledge” to the point that it can no longer be protected under copyright laws? Is everything published on the web subject to celebrity status? Again we can look back at 20th century arguments such as the one in the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc. In this case the Supreme Court ruled that the collection of data in a phone book did not warrant copyright protection.

...In Feist, the Supreme Court rejected the "sweat of the brow" doctrine that provided copyright protection for databases and compilation based upon the effort use to created the compilation. Instead, the court decided that compilations and databases are protected by copyright only when they are arranged and selected in an original manner. Although the level of originality needed is not very high, the white pages of a phone books are not protectable because the selection of the data (all customers in a geographic area) and the arrangement of the data (in alphabetical order) were not sufficiently original as to come under the protection of the Copyright Act.

I think we are moving towards a world where Google can be seen as a modern version of a telephone book and the images, sounds, and text that are generated within its reference framework are the data that is freely reproducible under fair use doctrine based upon two significant questions:
1. Are You Creating Something New or Just Copying?
2. Are You Competing With the Source You're Copying From?

Of course these two questions require complex analysis that the text of a law cannot clearly define. We have a perpetual need for courts and lawyers to settle issues relative to the usage of appropriated imagery (data). But when you apply these fundamental questions to the scenario of the magazine photo illustration I think you can readily see that the compilation of these fragments of data is creating a whole new visual expression that is not in competition with the authors of the original image fragments. Again the 2006 Appeals court decision supporting the fair use of appropriated image clearly used these two questions in guiding their decision. Justice Sack wrote for the court:

"Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it" because Koons was using it as "fodder for his commentary on the social and aesthetic consequences of mass media."

The irony that is emerging in the courts and on the Internet is that corporations who are trying to strengthen copyright laws are actually encouraging consumers to violate it to some degree as long as they can retain all the profits. George Lucas has a website where he encourages users to generate their own star wars parody videos, but the terms of submission state that Lucas retains all copyright on the new works submission. Hollywood studios and advertising agencies now routinely offer consumers the opportunity to create their own commercials and trailers and offer the opportunity to publish these films. Corporations are actively participating within social networking sites. They see this as a powerful branding tool that binds consumers to their products, however when the profits decline they also routinely pull the plug. Michael Williams writes about this in his 2007 article “The Cult of the Mohicans: American Fans on the Electronic Frontier” published in the Journal of Popular Culture where he describes how fans are encouraged to develop fan sites to create a marketing buzz but then are sent cease and desist orders after the movies run in the theatres. Clearly there is a need to recognize the lack of competition with the original. When Warhol painted his cans of Campbell soup it was recognized that there was no threat to Campbell’s and they were likely the beneficiaries of the positive publicity. If we are to recognize that post-modern art embodies ideas over form and we recognize that copyright law does not protect ideas, then we can see a way towards transformation, both of culture and its laws that will guide us towards new heights of creative citizenship.



Sources:
“Editorial Use May Not Always Be Fair Use. “ (2006) www.photoattorney.com accessed online at: http://www.photoattorney.com/2006/01/editorial-use-may-not-always-be-fair.html

Ginsburg, V., & Throsby, D. (2006) “Handbook of the Economics of Art and Culture: Volume 1.”Netherlands: Elsevier

Feist publications, INC. v. Rural Telephone Service Company. 499 U.S. 430. U.S. Sup. Ct. 1991.

Hamblett, M. (2006) “Artist Koons' 'Transformative' Use of Photo Affirmed by 2nd Circuit.” New York Law Journal October 31, 2006

Norman, G. (1995) “What’s new Pusenkoff?” accessed online at: http://www.independent.co.uk/arts-entertainment/whats-new-pusenkoff-1594011.html

Ritchin, F. (2009) “After Photography.” New York: W.W. Norton & Company

University of Washington (2006) “Copyright©Connection” accessed online at:
http://depts.washington.edu/uwcopy/Using_Copyright/Compilations,_Music,_Images/Compilations.php

“U.S. Copyright Office.” (2009) accessed online at: http://www.copyright.gov/