A couple of days ago I posted a blog. In that blog I included a photo. It was not my photo, and it was not altered by myself or the original photographer. After it was altered it was used in an obituary for a local Vancouver musician, and both the obituary, and the photograph created some controversy. I reposted both in that first blog. That photo has since been taken down, after Fiona Garden filled a complaint with Tumblr.
While I understand and respect her desire to not have that photograph used and shown as it was, Miss Garden failed to acknowledge the larger issue around copyright and fair use. As a photographer she should be willing to enter into this discussion and try to determine when a copyrighted work is being used fairly under the terms of fair use/dealing. Was it used legally with the obituary? I’m not entirely sure. Was it used legally in the article that I wrote? I would argue that it certainly was. Fair use/dealing is in place for just these sorts of events. Where a photographer, or an owner of intellectual property would not give permission for it’s use, but the use is ultimately more beneficial to furthering the discussion of an important issue. I used the photograph in a setting that complied with fair use/dealing articles of copyright law in the United States and Canada. The work as I presented it was used in an editorial setting, I was reporting news, and offering commentary to further intellectual discourse over several issues that arose. I did not, nor did the original obituary’s use of the photograph devalue the work as the work is (to my knowledge) not for sale, and no one is infringing on her rights to profit on the name of a deceased musician.
As someone who fancies herself an educator she should be aware of the issues around copyright, and fair use, and even if she only considers herself a photographer she should still be aware. Given this background Miss Garden should also be willing to participate in the intellectual discussion around this issue instead of falling behind a childish argument that it’s hers and hers alone. While she does retain copyright, she has published the image, after all it was pulled off the internet, and if she desires total protection she should avoid publishing images that may end up on the internet, otherwise she should familiarize herself with copyright law, and fair use, until then I fear the day a critic gives her a negative review.
I also find it amusing that out of all the comments and complaints that were posted on the obituary page, Miss Garden was the only one to fill out the (optional) website section for the comments, making sure to not let an opportunity pass her by to get hits. Talk about shameless self-promotion.
