The Trouble with Image Rights

April 22, 2016 Photography Andy Warhol Olivia Laing

There’s a somewhat legendary section in the German civil code, regulating the ownership of an escaping swarm of bees:

BGB § 961 Loss of Bee Swarm Ownership A departing swarm of bees is rendered ownerless unless the owner immediately pursues it or once the owner abandons the pursuit. 1

People like invoking this story to make a point about our country’s propensity for overregulation, or for fringe problems that lawmakers spend their time on. But I like it because the swarm of bees, restless and humming, is such a great analogy for the internet.

Or perhaps because online, our rules and laws often seem as desperate as that pursing beekeeper, panting as they chase after their hive. This came to my attention once more when I was looking for a picture of Andy Warhol.

Over at The Idea List, I had published an interview with author Olivia Laing about her book The Lonely City”. In it, she unravels the history loneliness played in several artists’ lives, and how it spurred their production of art. She describes how Andy Warhol — who had always been socially awkward — had used a tape recorder to keep people at a distance, by turning any natural interaction into a recording session. There are great images out there, showing Warhol and his tape recorder.

Trouble is, I couldn’t use any of them. I used to work as an image editor for a German magazine, and so I have fair share of experience with image rights. I also take my own pictures and publish them online. Both as a publisher and as a photographer, it’s important for me that creators are respected — given credit where credit is due and that they have a given permission about their work being published.

But looking for that picture of Warhol, I realized that my approach no longer reflects the reality out there. Warhol’s picture was everywhere, it had long spread on social media, gotten disseminated on various websites, retweeted, reblogged.

The people doing it ostensively did not care about rights—they were sharing what I suppose they found to be an impressive image. Turns out that pictures on the net aren’t all that different from a swarm of bees: Once they get away, they’re impossibly hard to get back. And I get it: Information, digital or otherwise, wants to be free. But this reality of how images spread isn’t at all reflected in the legal framework.

Instead, we are stuck with two parallel realities of image rights: One for publishers, who have to adhere to strict rules (or face the danger of getting sued) and another one for private individuals, who get to do what they want with any image they encounter. Neither one is ideal: Publishers often can’t show the appropriate images with a story, meaning they fall back on abstract symbol pictures. I certainly had to from time to time. Meanwhile, pictures get passed around everywhere else like they were common goods—even if they aren’t.

And the respective photographers’ names are usually the first thing that gets omitted. I am enough of a realist to know that no law will stop them, and that DRM embedded in images certainly isn’t the solution.

But I can’t stop wondering whether there isn’t a more elegant solution to this problem than simply shrugging my shoulders and accepting the status quo. We sometimes forget how young the internet is and how much of it can still be changed.

The biggest irony is that Warhol himself made an art out of reproduction: His famous screen prints blur the line between an original and its copy—all of it years before the advent of digital images.

  1. FBGB § 961 Eigentumsverlust bei Bienenschwärmen: Zieht ein Bienenschwarm aus, so wird er herrenlos, wenn nicht der Eigentümer ihn unverzüglich verfolgt oder wenn der Eigentümer die Verfolgung aufgibt.”↩︎

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