How Digital Photography Undermines Copyright Laws

Guest Article by Luke W. Henderson


When one peeks through history to see the development (photography pun) of photos from a delicacy that few could afford to the endless onslaught of selfies, cat pictures, and dinners made at home, it becomes an apparent example of how products thought as luxuries eventually become as common as a pencil. Pictures have become so commonplace that one could potentially document their entire life and store it on a hard drive, where before it would necessitate countless volumes of books.

Despite this increase in accessibility, photos still fall under copyright laws that ensure ownership of what today amounts to a unique organization of 1s and 0s. Photography today is almost unrecognizable from its past and the ease of distribution and alteration make today’s laws of intellectual property obsolete.

In the 1830’s, when some of the first forms of photography were invented, photos required silver plates, silver iodide, and mercury and could take 30 minutes to 2 hours to develop. Even when the process improved to extremely short development times and include color, specific chemicals, equipment, and a dark room were still required to participate in photography.

It made sense during this time why there would be laws to protect the original shots, because the development process was labor intensive, and all copies had to be made from the negatives possessed by whoever captured them. Without the modern convenience of photocopiers, the photographer alone had the ability to develop additional prints, so one could only copy through the purchase or theft of the negatives.

Copyright might have been viewed as an additional deterrent for theft of physical property, but ultimately, the law was protecting it like all other possessions. In the modern era, digitization and the internet have made photograph protection a convoluted and asinine process.

To the average person, a photo is no longer a printed piece of inkjet paper displayed in the leather-bound album upon the family shelf, but it is a function of the smartphone to capture images and use your gallery to share with loved ones. What constitutes a photo and its value has been radically transformed since the days of posing for the yearly portrait to adorn the wall.

Photos are now a collection of data whose convenience has made them as valuable as an ink pen. People want to express their excitement of a new opportunity, so they take a photo. They find their family dinner valorously delectable and to Instagram, that picture arrives. It has fallen into what Stephan Kinsella describes in “Against Intellectual Property” as intangible property.

What does a copyright nowadays grant the photographer? Ownership over a unique configuration of pixels and binary code? It’s not clear what the copyright holder owns and yet the current law states that they are master of this “image” until they sell it or license it.

Allow me to give a personal example to explain the ludicrousness of these laws. I had profession photos taken some years ago taken for my website and to apply for music composition competitions as several them required suit-and-tie portraits. At the end of the process, I had the option to pay for their basic package where I received the “right” to a few of the photos, explaining how if I shared or used the other photos I would be in violation of their copyright, but what made it more infuriating was that I received a disc containing all of the pictures from the session.

I wondered, what did the studio own since I possessed the disc with the pictures? They owned the government-granted privilege to sue me for “stealing” their property that they gave to me willingly or utilizing it incorrectly. The only thing that makes this laughable is that the current laws give me a loophole to that photo studios insidiousness.

Fair use is an aspect of copyright law that is meant to protect people’s use of copyrighted material for the purposes of education, parody, and any other “transformative” purpose. It’s the law that allows the creation of memes using images from any corner of the internet. The code of “transformative” and educational purposes is what allows me to share this image that I have in my possession but according to the law, don’t own. 

So, if by a few alterations and intending the image for commentary purposes I now may use it, the protection racket of copyright is nearly useless. I question the death grip of ownership that a photographer places on their work when if by little action it can suddenly become another’s property and deem that it is simply another tool of individuals using state coercion to be granted a right to exploit others.

The digital age has made many of laws which were propped up as being the entrepreneurial insurance that creators needed obsolete as many products turn to intangible objects where duplication is of ease and the law can be circumvented en masse. It is up to the creator to guarantee the payment and credit of their work through the same innovative spirit that allowed them to be hired. Photography is just another of many industries can little rely on the state in the era of the world wide web.


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