2017_07_18 COPYRIGHT LAW NOT FIT FOR PURPOSE

I recently came across a Twitter thread and an article which have had the cogs in my head whirring. The first was Todd Bigelow’s Twitter thread (here) regarding the proliferation of copyright attorneys and the second was an article on The Fashion Law (here) relating to celebrity versus paparazzi lawsuits. Though both pieces discuss copyright law, from different angles, both have the same fundamental, yet unmentioned, cause.


Todd points the finger at the ‘massive scale of infringement’, concluding that he faces;

“Loss of control of my work and loss of licensing revenue due to infringements. I owe it to myself, my subjects and my family to pursue infringements in the manner that will help me recover fees and mitigate the infringement wildfire.”


This is a common sentiment within the photography community and one which I myself share having dealt with infringements worth approx £100k last year; I continue to have an outstanding small claims court.


The Fashion Law piece questions the scale of celebrity infringement lawsuits and lists, at time of writing, Nicki Manaj, Gigi Hadid, Ariana Grande and Khloe Kardashian as being involved in litigation. In each case, the celebrity wishes to either circumvent or argue against copyright law with the potential impact of changing existing legislation. The article ends with New York University Law professor Christopher Sprigman concluding;

“It is a mark of celebrity self-infatuation that they think copyright law should be changed to address [what is a] very small pimple of a problem.” 


However, and as the article mentions, the Copyright Act did not, and could not, foresee the situation where we find ourselves today.


There has always been a relationship between fame and media which is, by and large, a mutually beneficial one. At a basic level, the media make sales from featuring the famous. And through being talked about the famous stay in the public eye and grow their fan base which leads to the growth of their own product sales (music sales, film tickets, etc).


This underlying relationship has not changed, but the manner in which it is conducted has been completely upended by the internet and in particular social media. Power and influence has transferred from traditional media publications to online and into the hands of a very small number of platforms (which if you consider Facebook owns Instagram and WhatsApp, has even fewer owners). At the core, social media is about data mining and while some may still believe these platforms to be free, there is increasing awareness that the purpose of the data mining is to more accurately sell advertising to third parties and also to increase computer learning for more, often, nefarious purposes. Take Facebook and the FTC fine as an example of reach and the financial figures involved; Facebook was fined $5billion for illegally sharing user data of 87 million people. Yet the record fine barely dented the social media company who saw their stock price rise by over $6billion the same day. The stock market’s conclusion? Facebook is a money making machine that will ignore the fine and continue with business as usual. 


And herein is the issue; social media consumes content like a hungry great white shark. And like a shark that requires propulsion to push water through the gills to breathe, content and it’s associated data is the air that social media breathes. And most importantly, it expects and is given this content by the users for free. Platforms twist and turn and bristle at being defined, promising to self regulate as they continue to avoid legislation that applies to virtually every single other industry and profession. Using their global reach they jump from country to country choosing whatever laws and taxes suit them best. 


In regards to photography, it is not in the platforms’ self interest to enforce copyright as this would severely restrict content and cut off their air supply. Hence the proliferation of copyright attorneys that Todd Bigelow mentions as there is now a demand for them.


So how does this relate to celebrities? ‘Free’ social media accounts allow celebrities to bypass traditional media and reach out to their fans directly. The bigger the following, the more important these accounts are to the platforms, who frequently allow transgression of their rules due to the financial value of such accounts (Trump anyone?). For their own part, the celebrities earn through the platform with sponsored posts for ever increasing, and eye watering, amounts with a single post valued between $125,000 and $300,000. According to Business Insider an, ‘average millennial woman makes somewhere around $31,069 a year’. This means someone like Gigi Hadid can make nine times an annual income with a single social media post. And also thus the rise in the the number of requests of services and goods in return for exposure on a celebrity account.


So how does this relate to photography and why the number of legal cases? Advertising revenue of traditional media publications has diverted to the internet, concentrated in Facebook and Google. As revenues have fallen, so have wages and the number of jobs; which has, presumably, fuelled the rise of the gig economy. And, as mentioned, social media doesn’t pay for content. So who pays for photography? Well, not as many today as before. Is it any surprise that photography agencies and photographers are now suing celebrities for copyright infringement? 


Returning to Fashion Law, they’re correct in noting the Copyright Act did not anticipate this. As a photographer it is a galling state of affairs. The industry feels like it’s caught in a pincer movement celebrities and social media. Celebrities, who can easily afford to pay licence fees or even hire their own personal photographers, are seeking to change copyright law in their favour. And social media companies who hoover up content for free, including all the metadata behind uploaded photographs, turn a blind eye to infringement and claim no responsibility.  Laws, generally, have evolved over time in their nation states. These borders are barely respected by the internet and especially social media platforms who continue to ‘move fast and break things’ for their own self interests and avoid definition in order not to be regulated. This has to stop. If a company grows larger than a nation state, but holds no responsibility to anyone but itself, there is huge risk to all. They must be treated like the monopolies they are, regulated and held accountable. And not just in regards to photography.


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