Steve McCurry photo in rated 2.5/7 in critique forum

[simon_crofts]

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<p>You have also committed copyright infringement since you have not used met the four conditions for fair use.</p>

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<p>Jeff, I think you misunderstand the significance of the four conditions. You don't have to satisfy all four of them, they are just four things the courts look at. Use of a photo for criticism and review is generally OK. See the guidance on the WIPO website for example. You do have to credit the author though, the delay in doing so is the arguable point here as far as copyright is concerned.</p>

[tom_mann1]

<p>Clearly, posting some one else's work is a violation of photo.net policies. It's Josh's "house" and we play by his rules. He doesn't have the legal resources to defend against a lawsuit, so he plays it safe. This is most reasonable and there is absolutely nothing wrong with this. I don't want to see this place disappear because some shyster thinks Josh has deep pockets and files a claim against Josh and, baseless or not, he has to defend himself. </p>

<p>However, I agree completely with Simon's read on the copyright conditions. I'm not a lawyer, but I spent 5 years sitting on the patent advisory and review board of a major US government entity so I saw a reasonable number of similar cases. Based on my experience, I would go further than Simon in that I suspect the OP's use actually satisfies some or all of these conditions. For example, based on the statements and examples given in http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html, I would claim that:</p>

<p>1. The OP's use was transformative in that it was for a completely different purpose, ie, discussion of a rating / review system. </p>

<p>2. Nature: The work was already published and widely distributed, so the OP has more freedom.</p>

<p>3. Amount and Sustainability of the Portion taken: The original work was down rez'ed, ie, only a portion of the original was taken. </p>

<p>4. Effect on the Potential Market: The OP's posting will have no effect on the sales of the original. The posting does not compete - it's inconceivable that one would look at the posting here and then decide not to purchase a print from Steve M. At most, one would look at this post and decide never to offer an image up for rating on photo.net. ;-)</p>

<p>Interesting discussion.</p>

<p>Tom M</p>

[lex_jenkins]

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<p>"He somehow was aware of this photo and some other photos lack of what we expect from him..."</p>

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<p>I don't get the impression that McCurry was citing Wabi-sabi in an effort to explain away perceptions by viewers that this particular set of photos was lacking anything. The impression I get is that he's referring to his effort to document in photographs the sense of Wabi-sabi already present in that milieu. It's the difference between a critic writing about eccentric music and a musician performing eccentric music. His photos may not have successfully conveyed the sense of the milieu he witnessed and experienced - at least in the eyes of some viewers - but that's not quite the same thing as citing the aesthetic as an excuse for unsuccessful photographs.</p>

<p>If you sense something lacking in those photos, perhaps it's because you've chosen to confine him to a particular style based on what you've experienced before. From my perspective he was generally successful in documenting transient moments of beauty and humor amid the mundane. As difficult as that goal can be for any photographer who delves into candid, street or documentary photography, I can think of several photo.net members who manage it fairly often.</p>

[Spearhead]

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<p>1. The OP's use was transformative in that it was for a completely different purpose, ie, discussion of a rating / review system.</p>

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<p>No new expression or meaning was added. "Different purpose" is not a condition. Advertising would qualify as a "different purpose" although it would violate one of the other four factors.</p>

 

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<p>3. Amount and Sustainability of the Portion taken: The original work was down rez'ed, ie, only a portion of the original was taken.</p>

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<p>Thumbnails have been granted fair use status. This was far more than a thumbnail and would most likely run into problems. Many institutions have specified thumbnails to meet fair use by being no more than 125x125 and are generally required to be a visual reference, not an object in itself.</p>

<p>I'm always amazed at how cavalier people are about nabbing other people's photos and posting here yet scream bloody murder when their photos get posted elsewhere. Because the laws require a certain amount of interpretation, it's always better to err on the side of caution and not post photos that could potentially be regarded as fair use violations. In addition, when people see unsanctioned postings of other people's photos, they tend to believe it's fine for anyone's photos in any situation. </p>

[simon_crofts]

<p>Again, you're taking those four factors too literally Jeff. They are just four of the factors that judges take into account when deciding whether it's fair use. Normally, publishing a photo for criticism or comment should be OK under copyright fair use doctrine, unless there are unusual circumstances playing against you that makes the use unfair.</p>

<p>The core of it in the US is <a href="http://www.copyright.gov/title17/92chap1.html#107">S.107 of the Copyright Law</a>:-</p>

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<p><em>"the fair use of a copyrighted work... <strong>for purposes such as criticism, comment</strong>, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, <strong>is not an infringement of copyright</strong>. In determining whether the use made of a work in any particular case is a fair use <strong>the factors to be considered shall include</strong> — </em><br /> <em>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;</em><br /> <em>(2) the nature of the copyrighted work;</em><br /> <em>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and</em><br /> <em>(4) the effect of the use upon the potential market for or value of the copyrighted work."</em></p>

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<p>In this context, you shouldn't take the four factors too strictly and literally. You don't have to satisfy each and every one of them. For example, it doesn't fundamentally matter if you use the whole of a photo rather than a bit of it. The bits about using extracts really have book reviews and quotes in mind. It doesn't mean that if you are reviewing a portrait you can only publish a crop of the ear.</p>

<p>This also corresponds with international practise. <a href="http://www.wipo.int/sme/en/documents/ip_photography.htm">Here is a description</a> by the World Intellectual Property Organisation's website on the way it normally works in international copyright law (in this case talking about making reproductions of artwork for the purposes of review, but the same principles apply):-</p>

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<p><em><strong>"</strong><strong>Taking photos to accompany a review or critique</strong></em><br /> <em>In most countries, copyright material may be used for criticism or review. For example, if you are taking photos of cartoons for a book which reviews, critiques or analyses the works. Just like for the exception of news reporting, you will usually be required to identify the copyright work and the name of the artist."</em></p>

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<p>That is entirely consistent with the way S.107 works in the US.<br /> UK law for example is even clearer and more categorical (S. 30(1) of the Copyright Act 1988):-</p>

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<p>Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public</p>

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<p>Basically, using a photo for criticism or review is as a general rule OK under copyright law, whether in the US, the UK, or internationally, provided you don't positively take the Mick. One should acknowledge the author though.</p>

<p>Don't get too hung up too much on literally applying every word of those 'four factors'.</p>

[amirali]

<p>Thanks a lot Simon, and thanks a lot to other people, as my part, I apologize (for the third time) if I have violated the rules of photo.net, I would like to respect the rules since I have benefited from this community and I want other people to benefit the same way too.<br>

On the photo, however, there is not one but many different criteria to evaluate a piece of art, let's say a photo. However, to my basic understanding and limited knowledge, I can see that photo cannot fit in any criteria that I can think of or I have read about. For me it is the perfect definition of a low quality snap shot. I have taken photos in subways and I somehow now the environment. I cannot find any reason to defend that photo or some other similar photos in that gallery. I would love to know how guys see that photo and what is your opinion. If you are looking for that I have stated in my previous post the address to that photo.</p>

[joshroot]

<p>AmirAli,</p>

<p>As this thread has swerved onto other issues due to your original methods, there is not likely going to be a way to completely pull it back to your original point. Copyright issues, and the confusion that even artists have about "fair use" are valid topics and obviously of interest to folks here.</p>

<p>I highly doubt anyone is looking down at you for your posting the photo since you have acknowledged the mistake. They are simply interested in the issues that surround usage of that sort.</p>

[john_robison3]

<p>This has been beat to death but fame and reputation have their advantages. Take that famous B&W picture of Al Gore (you all know the one) taken by David Burnett with a Holga. Great photo but I'll bet if it had been Joe Nobody bringing this shot to Burnett's picture editor he would have been given the bums rush.</p>

[simon_crofts]

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<p>I cannot find any reason to defend that photo or some other similar photos in that gallery. I would love to know how guys see that photo and what is your opinion.</p>

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<p>It's the photo of the guy on the metro? It can be related it to his statement about Wabi Sabi - "finding beauty in imperfection". Here you have the super efficient Japanese commuter system carrying all these businessmen to their work ethos. And some guy hasn't been able to take the pace and has lost all self-control and dignity, sleeping with his mouth wide open. That's finding a kind of imperfection that makes the society/metro seem suddenly much more human. You could see a kind of beauty in that human frailty.</p>

<p>I have quite mixed feelings about McCurry's pictures, there are some which are wonderful, and a number which I am less enthusiastic about. I'm not a particular fan of the Afghan girl picture or most of his portraits that I've seen. Granted, the Afghan girl does have striking eyes. But I like some of his landscapes/environmental shots (usually with people in them). I do like the Japanese boy on the metro picture you referred to, it's one of his more thoughtful pictures, for me. Some of the other Japanese ones in that gallery I find more banal, and they seem to me to lose this idea of finding beauty in imperfection, so not quite sure how/why they were chosen to appear together.</p>

<p>Of course, posting any of these pictures out of context in a critique gallery is going to have them overlooked or panned. The idea and aesthetic behind them will get lost. But that is just the inadequacy of such critique galleries, not much to do with the value of photography.</p>

 

[andylynn]

<p>Now that I look at the set of photos on McCurry's site, it's more obvious what he's trying to do. Removed from context it's just a shot of a dude who fell asleep in a subway train, and it's being shown to readers who are more accustomed to nudes and highly saturated landscapes.</p>

[amirali]

<p>Very interesting points, however I was always under the impression that a photo should be self-sufficient or at least be relevant in multiple photo series like a photo essay. I was thinking that the art of the photographer is to mix the story with visual art which evoke a feeling or a memory or even stimulate some neurons, or at least view a subject from a different point of view, or just go for the pure beauty, etc. I am thinking in this case why don't we give credit to the people who have copied van gogh paintings as we have seen this kind of photo thousands of times.<br>

I saw photographers whom work I cannot understand or I don't like, however I see that they have a certain style of capturing the holy trinity of photography as stated in the The Moment It Clicks book. Light, Color, or Gesture. If I am just a good writer and then write a very dramatic 4 short lines and mix it with my fame I can sell any photo! What I am trying to get at is, what bothers me about this photo and that is it does not fit anywhere in my evaluation system in a good place. And I am wondering why.</p>

[george_ghio]

<p>Hi AmirAli</p>

<p>Sorry I missed seeing the photo in question but I know what you are concerned about. My best example is where a painting of an old master has been hanging in a museum and acclaimed by everyone as a great work. Then one day the painting is found to be a forgery where upon it is taken down and, well basically, thrown out.</p>

<p>Either it was good art or it wasn't. Buying art based on the name at the bottom is is for pretenders, sycophants and brown snouts.</p>

<p>I know this is the inverse of your question, but the same principle is in force, the right name and art goes out the window.</p>

[andylynn]

<p>AmirAli, I don't agree that a photo must stand on its own, decontextualized - that interpretation is quite confining and doesn't allow for types of work that are more powerful in the aggregate than as discrete objects. I've seen many examples in photo, painting, sculpture and other media in which a single piece is a discrete object with a limited amount of meaning attached but many pieces can be presented together, so that the work is the entire installation or display of multiple pieces. No single piece taken on its own would be considered a great work of art but the aggregate of the installation, book, show, etc., has meaning beyond that of any component part. (See also, albums that are best listened to in their entirety instead of choosing one track.) I see this web gallery as an example of that type of presentation. I would think that there would be many viewers who might see that photo by itself and think it's nothing special, but might find the full gallery very interesting as an expression of McCurry's experience of Japan, which is what he's really trying to relate.</p>

[simon_crofts]

<p>Even taking my very most favourite photographers, there are an awful lot of photographs by them that I don't 'get' - that don't appeal to me for one reason or another. That's half the fun - going through pictures and series and finding out what appeals, which by definition also means working out what doesn't appeal. And along the way, perhaps trying to understand the artist and what he/she is getting at. McCurry is at least trying to do something interesting with this photo. We can all try to work out whether or not from our own point of view whether he succeeds. To me, I don't really dig the photo or that series, but I can appreciate the attempt. It's more interesting than all those predictably composed portraits of people with glowing/whitened eyes.</p>

<p>I like his blog, I think the pictures are much more interesting contextualised there.</p>

 

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<p>My best example is where a painting of an old master has been hanging in a museum and acclaimed by everyone as a great work. Then one day the painting is found to be a forgery where upon it is taken down and, well basically, thrown out. Either it was good art or it wasn't</p>

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<p>If art is a matter of decorating walls, like really expensive wallpaper, then the fake copy should have as much value as the original. So for that matter would a good quality poster or inkjet copy of the original have the same value as the original.</p>

<p>If art is about knowing how to make brush strokes and apply paint to a canvas, then (assuming it was well done) the fake copy would have the same value as a genuine original, but the photocopy/inkjet would have less value.</p>

<p>If however art is about the expression of creative genius and originality, then the fake copy is worthless, and the genuine original is priceless.</p>

<p>Some people may also be interested in it as a historical artefact, and, like a Roman's helmet that turns out to be a copy made in a modern factory down the road, it loses its historical appeal.</p>

 

[Richard Williams]

<p>Now that the Copyright Police have had their say and the image has been deleted, is there an external link to this picture so that those of us who missed it can see what you're all talking about..?</p>

[amirali]

<p>It is the 9th photo in the Japan gallery of the Steve McCurry's website. It shows a Japanese person sleeping on the train. There are other photos as well in that gallery that are a little bit hard for me to understand why this photo is good</p>

[tom_mann1]

<p>Amir, going by McCurry's numbering at the bottom of each page, the 9th image in the Japan gallery of www.stevemccurry.com is a night shot of a businessman in suit walking past the brightly lit shop of an acupuncturist or perhaps a palm-reader. I can't find the "sleeping person on a train" image anywhere in that gallery. Perhaps he rotates his images and it is no longer up?</p>

<p>Tom M</p>

[lex_jenkins]

<p>Fascinating... the Japan gallery has indeed changed since this discussion began. Earlier this week it had 18 photos, including the one AmirAli referred to. Now it has 17 and that photo is missing.</p>

<p>Perhaps a waggish webmaster noticed this discussion and yanked it to yank our chains? ;></p>

<p>Anyway, AmirAli, you may be among those photographers and viewers for whom a single photo must always stand on its own merits. That's not unusual. Photo.net's entire ratings and critique system is geared that way. I'm among the folks who prefer documentary style photography with a through-line or story arc that's revealed over the course of several photos. From that perspective a single photo may not stand on its own merits but may be as essential to the story as a three-foot-long bridge over a 1,000-foot-deep chasm. The story may not collapse for lack of that bridge, but why take the risk?</p>

[Richard Williams]

<p>I had a quick look at the Japan images on the Magnum site. Maybe this?:<br>

http://www.magnumphotos.com/CoreXDoc/MAG/Media/TR3/0/a/f/2/LON118997.jpg<br>

If the link is broken, search for 'LON118997' at http://www.magnumphotos.com</p>

 

[lex_jenkins]

<p>That's a cropped version of the same photo that appeared on McCurry's site (until today). If I'm recalling correctly the uncropped version showed a gal with a ponytail and earbuds along the right side, and a fellow in a business suit on the left. Since the other version shows only the back of the ponytailed gal's head I suppose there was a temptation to crop, but I don't think the cropped version is better. One viewer's "technical flaw" is another's "quirky charm." I tend toward the latter. I guess the photo must have worked since I can recall it in such detail, having seen it only once.</p>

[amirali]

<p>That is true, the photo here is cropped version and Lex is describing the original photo very good. It is true in photo essays or stories a number of photos gradually reveal the story, but even considering that, I was expecting something distinguished or at least something not that snap shotty.</p>

[antoniobassiphotography]

<p>I'm glad the copyright infringement issue seems to be forgotten. One of the best five cellists in the world and perhaps one of the greatest musicians of our time tried to do a similar test: he took part in a top American orchestra audition process. A top soloists that auditions for an orchestra job, competing with young musicians that just got out of school. Orchestra auditions are usually divided into three stages: preliminary round, semifinal and final. The preliminary is always behind a screen, to guarantee total impartiality in the judgment. Well, this top soloist tested himself behind the screen and... he was kicked out at the first round!</p>

<p>I am sure many of you heard about that Modigliani fake that had been considered real for a long time by the top experts in the world. And probably not many of you know how Carlo Bergonzi, great violin maker student of Antonio Stradivari, inherited his master's shop and used to sign "A. Stradivari" many of his first violins that came out of the shop while Strad was still alive... Those violins have been considered real Stradivari's pieces up until very recent.</p>

<p>All this to say that once you are famous you can do pretty much all you want and today it doesn't take to be great at what you do to become famous. The best help to the top usually comes from your agent or agency. This doesn't mean that any idiot without technical training can reach the top: you still need to be somewhat good but don't have to be a genius to be acclaimed as one. See Italian pianist Giovanni Allevi, considered to be the Mozart of 2000 and one of the greatest pianists Italy had: a true genius, and he is amazingly good at acting as one! Truth is... he is good and intelligent and has a great agent that was able to sell a good product that millions bought. For sure not of the caliber of Mozart or Beethoven. If the NY Times says you're good, you're good and that's enough for most.</p>

<p>Once I played around with my teacher and made him listen to a recording of me and a piano player playing one of Bach's violin and harpsichord. I told him it was a famous duo and he totally fell for it!</p>

<p>Conclusion: most people judge under the influence of many factors that have nothing to do with quality. Beware of who has a lot to say but little to show. You can recognize a good tree from its fruits (someone said that before...).</p>

 

[je ne regrette rien]

<p>The photo in question seems not to be there anymore.<br>

However, all other pictures have punch and none of them looks like a snapshot.<br>

I challenge any of the "artists" here on photo.net to produce similar "snapshots". The compositions, the tones, the dynamics are outstanding.<br>

Being politically incorrect, I would say that many are not able to look at photos, nor to understand them.</p>

[AlanKlein]

<p>I never really knew about McCurry until this thread. I do recall the Afghan woman image from years ago and was captivated like most people. I'm very impressed with his work now that I've looked at his Gallery. I enjoy taking landscapes but he often places people in them for scale and orientation and it makes the images more compelling. Landscape is pretty but people in them add a lot of interest. I think I'll try to do that more with my own.</p>

<p>He also enjoys humor and counterpoint like the old Japanese woman hunched over walking past a store displaying sexy lingerie. Again, compelling. It makes you think. He juxtaposes a lot of his pictures. I suppose the same could be said about the yawning Japanese man. Technically his images are superb. His portraits have sharp sharp eyes with nice natural catch lights. (How does he get them?) His compositions don't violate a lot of rules. For example he waited to get the Japanese man walking past the white circle so the man was entirely in it. No trees popping through heads in any of his published shots. You see that in all his shots. He waits. He's patient.</p>

<p>I think he's a great photographer and I understand why Nat Geo uses him so much.</p>

[amirali]

<p>Maybe I was not able to see the punch in that particular photo. However, I think it takes more than avoiding popping trees from behind the head of people to be such an acclaimed photographer. We saw a link to the cropped photo I guess in magnum.<br>

I was looking at my favorite book, "Vanishing Breed" by Albert Allard and I saw a photo there which was a little bit iffy for me at that time. It means that I did not understand that photo. I am guessing someone like Allard had a hard time choosing the best photos for his book among the good photos and why that photo is there ? Either they had something in my mind that did not came to my mind. They now something that I do not know (very likely, probability = 99.999 %). However later that I look at that photo I realized how good that photo is. But either way, that photo did not look like a snapshot at all even at that time. It was different, it has lots of style, and light and colors in it. It has a story behind it and a nice story. I still cannot understand that photo from Steve McCurry (which is apparently deleted and cropped and ...)</p>