Dealing with Stalkerazzi:

Using Copyright to Eliminate Intrusive Photographs Without Censorship

Alistair Kelman
LSE Computer Security Research Centre
[email protected]

A French translation of this article is available on request from the author.

Contents

1. Introduction

2. What is an Intrusive Photograph?

3. Why Register the Photograph?

4. How would the System Work?

5. Connected Problems

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This is a Work in Progress article published on 16 September 1997.

Citation: Kelman A, 'Dealing with Stalkerazzi: Using Copyright to Eliminate Photographs Without Censorship', Work in Progress, 1997 (3) The Journal of Information, Law and Technology JILT). <http://elj.warwick.ac.uk/jilt/wip/97_3kelm/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/kelman2/>

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(Note: This is a 2nd Revision in the light of some comments received by e-mail since my original paper was published on 1st September. The original paper is on the Privacy International site at http://www.privacyinternational.org/)

1. Introduction

The driving force behind Stalkerazzi is huge financial gain from a few minutes work. Break the link between money and intrusive photographs and the problem is well on the way to being solved.

Today if a freelance photographer takes a photograph he gets his agent, normally a fringe photographic agency, to distribute copies to the newspapers. Under the law of copyright the newspapers cannot use the photograph unless and until they have come to a commercial agreement to pay the photographer for their use in their publication. In a complex field we have terms such as First British Publication Rights which allow the publisher to use the photograph in one day's publication - extra usage results in extra fees. Agencies on behalf of the freelance photographers arrange bidding wars to make money for their client - several million dollars, for the single photograph of the Diana and Dodi 'Kiss'.

My solution to the evil of intrusive photographs is to henceforth abolish automatic economic copyright protection for photographs while still retaining full automatic moral rights protection. Instead a photographer who wished to have the economic rights in his photograph secured would have to deposit and register a copy at a Web site. The declaration he would make is that the photograph is genuine, was taken by him and was not an intrusive photograph.

To make this change in the law we would first need to amend the Berne Convention on Copyright. Then each country would have to implement the changes in the legislation into their laws. It sounds like a large and difficult task but, in fact, the procedures are well under way for reviews and amendments of the Berne Convention to deal with issues such as Information Technology and the Internet. So the necessary change in the law could be tagged onto these ongoing developments. But the change need not be delayed. Since we are only going to be looking at new works, photographs to be taken after a particular date, there would appear to be nothing to stop governments announcing that new intrusive photographs did not have economics copyright protection. The House of Lords in the Spycatcher case ruled that Peter Wright's iniquity removed his economic copyright protection in the text of the book. There appears to be nothing to stop sovereign nations making similar global decisions regarding intrusive photographs in advance of a formal change in the Berne Convention and its implementation into national law.

2. What is an Intrusive photograph

A photograph would only be intrusive if it satisfied the following criteria:

1) It was a photograph of a dying or recently deceased person taken without the permission of their heirs in circumstances which were not war or terrorism

2) It was a non-consensual photograph (that is to say not of all the people in the photograph had consented to the photograph being taken)

a) Which shows a scene where a person could reasonably expect and desire privacy; and

b) At the time the photograph was taken the paramount purpose of the photograph was not to illustrate a 'hard news' story - as defined below

'Hard News' is news concerning war, terrorism, racketeering, corruption or criminality.

3. Why Register the Photograph ?

In a word 'Evidence'. The registration process for all new photographs would force the photographer to describe what he considers to be the key features of the photograph. A false declaration would be a criminal offence and the photographer would be liable for prosecution and confiscation of any moneys so gained. Additionally the newspaper and the newspaper proprietor for paying the photographer for an intrusive photograph and participating in a false declaration could be subject in the USA to RICO penalties [Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. 1961-1968 (1988 ed. and Supp. IV).] and equivalent penalties in other jurisdictions under similar laws.

4. How would the system work ?

The photographer would deposit a copy of a photograph in which he wanted to preserve his economic rights with an independently managed central agency and would swear a declaration that:

a) He was the photographer

b) The photograph has not been modified and altered (morphed)

c) The photograph was not intrusive as defined above The requirement to register and declare for copyright protection of photographs would not affect the genuine work of Fleet Street photographers. They and their newspapers could automatically make these declarations in the course of their work. It would not affect the activities of genuine photo agencies or professional photographers who would simple implement these procedures as part of their normal professional record keeping. Amateur photographs could pop into an Internet cafe or use their own e-mail facilities to make registrations and photographic processing companies could provide registration as an extra service. The equipment cost for registration is fairly minimal - a scanner costing between $50 and $200 would be capable of performing the necessary data capture when linked to an ordinary computer. Consequently registration costs could be very low.

The key factor in this proposal is would not be censorship since it would not require newspapers and other publications to only use non-intrusive photographs. If a intrusive photograph was taken in the course of genuine investigative reporting, although it would not have any economic copyright it could be used by a publication and circulated if it were newsworthy. This would be a decision of the picture editor. The photographer of the intrusive photograph would not get any money but his name would be printed along with the photograph if he so wished.

This deals with the situation whereby an intrusive photograph is taken in circumstances which are not 'hard news' at the time but later comes to be used in support of a hard news story. Thus a politician could be shown to be untruthful if he said that he had never met someone but there was an intrusive photograph showing him in a clinch with that person. The photographer who took this intrusive photograph would not get any money - it was not taken as part of a hard news investigation - but would get recognition through his moral right and would, by use of his moral rights, be able to exercise some control over the use of the photograph. The existence of this intrusive photograph, which was not taken as part of a hard news investigation, would be happenstance for the photographer - he would not have taken it as an intrusive act to make money (since under my system this would not be possible) but his moral rights would ensure that he gained proper recognition for his work amongst his peers.

Thus if we think of a modern image - say that of the little girl covered in napalm in Vietnam running naked towards the camera - the photographer who took this image would get full economic copyright and moral rights in his work. But a Stalkerazzi who took an intrusive photograph - say Liz Taylor alone at the grave of Richard Burton - would not have any economic rights in the photograph. It would not have been worth his while to hide in the undergrowth to intrude on her grief.

5. Connected Problems

With intrusive photographs losing their economic copyright protection they would still have some value for first publication. The basic change in the copyright law would not prevent a photographer showing the only print to a newspaper editor and offering to sell the only negative for an indecent amount of money. Onward reproduction would not reward the photographer, but there would be some value in publishing first.

However the photographer in this situation would encounter a particularly practical difficulty which is how to show the editor the photograph. He would have to do it in person, going round the editors with a sheaf of 10 x 8 photographs. If he sent a digital copy to the editor by e-mail - the editor could pop the photograph through the computer restorer to bring back missing detail and then publish it without paying a penny. So the distribution of intrusive photographs would be slower and in the newspaper world where time is of the essence this is a very important restriction.

The only way he could make money would be by sending a fax or a thumbnail print of the photograph and a draft contract under which the editor agreed to pay an obscene sum for the 10 x 8 photograph if it contained the details described in the alleged photograph and the editor decided to use it. Here is where privacy legislation dealing with intrusive photographs could become important. By forcing the photographer to describe what he considers to be the key features of the photograph the photographer would be caught 'bang to rights' under privacy legislation if the photograph infringed a person's personal space - since the description would be equivalent to a voluntary signed confession by the photographer. The newspaper would be wary of paying for an intrusive photograph since this could bring it within the scope of RICO (see above).