NY’s Fader magazine asked me to take a portrait of the Unicorn Kid for their Feb/March issue, a complimentary copy of which very kindly sent through by Fader has landed on my doormat. We, which includes my beautiful assistant/wife, met up on a freezing December afternoon in Leith. The U.K. (aka Ollie) turned out to be gently charming and cooperative – and patient. Here is a tearsheet of how the picture was used in Fader, plus some of my own favourite outtakes from the pictures.
An interesting post on the Trichordist blog brought up an old chestnut that seems to come up wherever there are internet discussions about copyright. Someone always seems to pop up with an objection to use of the term “copyright theft”, claiming that pinching pictures is not “theft” in law. I thought I would explain why in my view “copyright theft” is the right term.
First let’s start with the word “piracy”. This is the normal term used by lawyers and non-lawyers alike to refer to the criminal offence (in the UK) under S.107 (1) of the 1988 Copyright, Designs and Patents Act 1988. The word “piracy” is not actually used anywhere in that Act, but it is the short form description commonly used to refer to that criminal offence (see for example this online legal dictionary), and it is widely used elsewhere – for example as the legal term to describe the offence in at least one international treaty – the TRIPS (which of course, has legal force in international law):
“Article 61
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.”
It is quite common among lawyers to use short form to describe criminal offences even where the word is not part of the definition of the offence itself. That is why “theft” in the 1968 Act is called “theft” and not “dishonestly appropriating property belonging to another with intent permanently to deprive”. Use of a short form term is easier, and punchier. Lawyers often think up short form descriptions that aren’t strictly part of the definition of the offence itself, such as “manslaughter”, “dealing”, “murder” and so on. The same happens in civil law – “negligence”, “nuisance” etc. as short form ways of describing complex legal concepts.
And so it is with “copyright theft”. The fact that “copyright theft” isn’t the same thing as the offence of “theft” under the 1968 Theft Act doesn’t matter. Copyright “piracy” is referred to as such despite the fact that such piracy has nothing to do with the Piracy Act 1850. And so “copyright theft” can accurately be used as a name to refer to the criminal offence under S. 107 (2A) of the 1988 Act, an offence which is punishable by up to 2 years in prison and/or a fine:-
“A person who infringes copyright in a work by communicating the work to the public -
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.”
The title appears to be commonly used by lawyers fairly regularly – a typical random example taken from the internet here.
Of course, the criminal offence itself is distinct from a breach of copyright under civil law, and sometimes a civil breach is referred to as simply “copyright infringement”, though “copyright theft” is sometime also used to refer to a civil action to emphasise an element of culpability, and in practise a large proportion of civil copyright breaches will also be criminal offences. The two expressions “theft/infringement” are used fairly interchangeably and no doubt both are correct, but the term “copyright theft” seems more appropriate for a serious criminal offence, as “infringement” implies breach of a civil right or perhaps at worst a rule or regulation, rather than an indictable criminal offence.
As an aside, one rarely if ever hears people objecting to everyday use of the term “identity theft”, even though identity theft has nothing to do with the Theft Act. It’s odd that “copyright theft” should raise objections on some internet forums where the use of “identity theft” seems to slip past unchallenged.
So there you have it, my own explanation of why it is entirely correct to use the term “copyright theft”, whether or not you happen to be a lawyer.
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Sylwia might have the right to feel a little insulted by the wreck bit, but I mean the ship, not her. This morning we did something that we haven’t done for a long time – got up horribly early, and set out on a train ride to a particular place to take a particular photo. I had seen this place some time ago, and had meant to visit it for ages. Without actually being there I couldn’t be sure it would be interesting, and it seemed a long way to go on the off chance, and it never seemed convenient. Last night I decided I had made enough excuses, and since we had to go to Glasgow to meet a client anyway, we could get up earlier (a word not usually in my vocabularly) and take my picture first. It’s so refreshing to set off to take a picture, just for myself, with no ulterior motive (eg. money) in view!
Sylwia not only served as the core (maybe I should say: corr!) of the picture, but also brought me the vital first cup of tea in the wee hours of the morning that got me out of bed. I almost never take any portraits of Sylwia – I don’t know why, I certainly should. Sometimes it’s hardest of all to take pictures of the people who are closest to you. This was as good an occasion as any to make up for lost time. So as soon as I had taken the picture without her that I wanted, this was time to take a portrait or two. Or three or four.
There’s something about being a photographer that makes you blind, and of course it was much more important and fun to take pictures of Sylwia than some mouldy old ship. But both pictures needed to be taken.
I still have to develop the films from the Mamiya, it’ll be interesting to see how they compare, but here is a preview of some of the pictures taken on the Nikon. We were there for an hour, before we had to dash for a lunch meeting with clients in Glasgow.
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I’m a little overawed to have been asked to give a guest lecture at the august Edinburgh College of Art this Tuesday, in the main lecture theatre, on the topic “Haggis and Vodka: working as a documentary photographer in Scotland and Russia.” ECA nowadays is part of Edinburgh University. What an opportunity to talk ‘at’ a semi-captive audience about things that interest me! The plan is to tread a delicate line between keeping the audience awake but not actually have them stampeding for the doors.
I’ll be talking about my own work, but also about some business aspects of working as a photographer – negotiating with clients, running personal projects alongside earning a living, that kind of thing. I am looking forward to it!
Here’s a copy of the poster:
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Sometimes my lunch breaks as a lawyer at Linklaters were longer than they strictly should have been. I always carried a camera with a lens so sharp you could shave with it in my coat pocket or lawyerly briefcase. If the KGB ever followed me, they must have put me on their distinctly dodgy list, and wondered about the significance of the apparent innocuous scenes that I was clandestinely capturing.
In this first picture, tucked away at the bottom of the frame, there is a figure sitting on a horse. He’s the only statue in the scene – the workers erecting the scaffolding are real live people! The man on the horse is Zhukov. Not many people can claim to have saved western civilisation as we know it, but Zhukov can – or rather, could. He was responsible, probably more than any other person, for the defeat of Hitler. He rode a white horse that was famous for trotting in an odd way, with its feet on either side hitting the ground more or less simultaneously rather than alternately. Or so I heard.
The bronze of the statue had weathered to almost black. I was standing next to it when a babushka (little old lady) exclaimed to an accompanying child “The statue is all wrong, Zhukov’s horse was white!” I turned to her and blurted out: “I believe Zhukov himself was white too”.
Usually the witty riposte occurs to me five minutes later, five minutes too late, so I felt smug for at least a day after that. And in a foreign langauge too! In fact, still feel a bit smug, over a decade later.
The second picture speaks for itself. I used to find it hard to look at, but then again, I don’t see why I should, and now it no longer bothers me. But it is a disturbing image. Am I exploiting the woman in the picture? On the one hand, I’m giving her money, which can’t be a bad thing, but maybe I’m only doing it to take her picture – would I have given her the money without taking the picture? So maybe it’s exploitation. And I’m also taking her picture without her consent. The fact that I am wearing a jacket, apparently well dressed, doesn’t help – and she is kissing my hand. There is something shocking about that. But why should there be? Is it shocking to wear a suit? Or to give money? Or to take someone’s picture? Or to kiss someone else’s hand? Or the combination of all these? Maybe the picture is uncomfortable because it puts in front of us something that we would rather not see? Who is at fault here: the photographer (me) for taking the picture, the owner of the hand (again me) for wearing a suit, the babushka for abasing herself, or the viewer for not liking to see some kind of truth?
I’m sure there’s a PhD in there somewhere.
And the third picture – babushki s ogurchikami – for good luck. I find the smile and eyes of this babushka mesmerising, hundreds of years of babushkina bonhomie and supply of pickled cucumbers distilled into one look. It was taken at Novie Cheryomushki Market. Cheryomushki is a kind of cliche for a ‘new’ Soviet district in Moscow. Shostakovitch orchestrated a song about it which involves a chicken which doesn’t want to be cooked which I sing from time to time in the bath.
And I think everyone understands the significance of cucumbers. No, not that significance, the other one: cucumbers = zakuska = bite on it to accompany a shot of = vodka. Cucumbers could be a kind of symbol of Russia in transformation, the engine that powers the drinking Russian muzhik from one end of the day to the other. A bit like potatoes for an Irishman, only with more vodka.
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