Digital Imaging: Legal Implications

The Digital Imaging Revolution:

Legal Implications and Possible Solutions

by Kimberly Amaral

"Digital imaging" (a.k.a. electronic imaging, computer imaging, image processing and image design) is at the root of this confusion. It allows just about anyone with a scanner or digital camera, basic software, and a little training to manipulate photographs, video and audio tape--making the imagined, real.

But just as digital imaging presents endless possibilities for creation, it also provides endless possibilities for legal infringement. Legal issues to be explored in this discussion include the use of photographs as evidence, copyright infringement and invasion of privacy.

So far digital imaging technology has been used mainly for positive purposes--retouching and restoring old photographs, such as that done by Spinner Publications, a small press publishing historical material on southeastern Massachusetts. In their latest release, The Strike of '28, by Daniel Georgianna and Roberta Aaronson, Spinner used computer programs like Adobe Photoshop to "touch up" scratches, faded negatives, poor lighting, or just the torrents of age on the photographs and documents they printed.

Other methods of positive digital imaging may be found through on-line systems like Internet, allowing people at the touch of a button to be exposed to the art collection of the Australian National University, or even give themselves a video tour of the Honolulu Community College.

Digital imaging has also been used widely for scientific visualization, providing easy access to the creation of 2-dimensional and even 3-dimensional images. These images are invaluable as teaching tools and for research.

Digital imaging is even entering the everyday life of the "computer illiterate." Just enter any mall and you may encounter machines which can instantly produce pictures of you "trying on" different hairstyles. Or the dentist may show you what you may look like with your teeth whitened. Or a plastic surgeon could show you how you'll look with Demi Moore's nose. Don't want your ex-husband in the family photos? You can digitally have him erased from every birthday and anniversary by a variety of electronic design companies such as Take Two in Arlington.

But, as with any powerful tool, it can be used deceptively if placed in the wrong hands. Some benign examples have already surfaced with the print media, often "fixing" photographs to make their composition or even content--perfect.

Perhaps the most notorious example is that of National Geographic's February 1982 cover, where one of Egypt's great pyramids was electronically moved closer together to improve the composition, bringing its apex inside the magazine's yellow cover frame. Former editor Wilbur Garrett argued the decision in a New York Times letter to the editor to point out that the effect would have been the same if the photographer had moved over a couple of feet. Garrett also questioned whether we should start worrying about the ethical impact of a photographer changing a photo by using a telephoto lens, a light filter, or staging some other aspect of the photo.

Another famous "fixer" photograph was that of Time's 1989 cover photo depicting the fallen Olympic runner Mary Decker with an official bending over her. The official's walkie-talkie had an antenna that seemed to jut out from Decker's chin. The photographer, Tom Bentkowski, who took the photo in 1984, erased the antenna.

And still another infamous photo fixer is Rick Smolan, who used electronic imagery to change the colors and composition of several photos, including the cover of his book, A Day in the Life of America. In the cover photo, for example--taken with all the photos on May 2, 1986--Smolan cut the distance between a horseback rider and a tree to fit both in the picture. Smolan said he views the book jacket as advertisement of the book, and that advertising is not subject to such stringent rules.

But hasn't photographic manipulation been around for decades? The answer to that is a resounding "yes." Ever since the invention of the daguerreotype, manipulation has occurred in the form of cropping, airbrushing, even pasting other images onto a photograph and then reshooting that picture, making the new image almost seamless.

These old manners of photographic manipulation have even been used in the past to "erase" someone from history, such as the Soviet Union did with Grigory Nelyubov, one of the nation's earliest cosmonaut trainees. He had his face smudged out, cropped out, and completely erased from all space shots and group shots in 1961, after he had a run-in with police. (Life. Dec, 1986.)

And in 1981, when the Soviet Union wanted to downplay the military's role in the Soviet space program, they eliminated Soviet missile chief Kirill S. Moskalenko, who, in military attire, originally appeared in a photo between cosmonaut Yuri Gagarin and rocket expert Sergei Korolev during their first launch of man into space. (Life. Dec, 1986.)

And of course, methods such as airbrushing--used to disguise any physical defect--have been used rampantly in mediums such as advertising for decades now.

But never before has manipulation been so easy, so fast, so accessible--and so difficult to detect. Video scanners and digital cameras turn a photograph into an arrangement of electronic digits, or pixels, which are then stored in the computer's memory. With easy to use, popular imaging programs such as Adobe Photoshop or Astral Development's Picture Publisher, and the novice's favorite, Ofoto, you can open a scanned image, zoom in an out of sections of it, and move about those pixels as you wish. You can even "clone" a section of the photograph, repeatedly reproducing those pixels until you get the same color and characteristics of the original. And any changes can be blended so convincingly, that even experts have a difficult time deciding what is real--and what has been changed. Usually the only clues that are provided are inaccurate shadows, or the size of objects staying the same despite a difference in distance and perspective, or both foreground and background being in focus--something very difficult to do with a camera without a large amount of available light.

With advances such as these, even newspapers are gravitating towards digitized photos. The Associated Press employed digital imaging during George Bush's inauguration-providing ready-to-print pictures 40 seconds after they were taken.

And stock photo agencies such as Sygma--upon which free-lance photographers count on for most of their income--are planning for digitized distribution by 1994. Placing photographs on-line pose additional problems to free-lancers, as news agencies may take the original, manipulate it until it is no longer recognizable, and use it without paying royalties. The concept of fair use, where only 5% of an original document may be used without infringing upon copyright, is difficult to apply, since visual changes are much harder to detect.

But the damage doesn't stop at still photographs. Videotapes are subject to easy manipulation as well. By connecting a machine very similar to a VCR to a computer's hard drive, you can digitize the images of video, allowing you to reenter the document, re-working and changing images frame by frame. This is the method of cover-up used in the fictional murder mystery by Michael Crichton in Rising Sun. The real killer's face is replaced by another man's--implicating the wrong man in the murder. Scientists in the book working on the case only discovered the manipulation of the incriminating tape when they noticed several subtle inaccuracies: shadows of an absent person remained; a brief mirrored reflection of a third person appeared, while the actual person had been erased.

So if photographs and videotapes can now be easily tampered with, what effect will that have on our legal system?

Perhaps the most obvious conflict would arise in continuing to use photographs (and videotape) as evidence. In the past, photographs were considered to be unabashedly true, since even older forms of manipulation are often easily detectable. Because of this, photographs have always enjoyed leniency in being used as evidence in a courtroom. There are only two guidelines that a photograph must meet to be submitted as evidence: it must be relevant to the case at hand, and it must be authentic. As photographic manipulation becomes more prevalent, this latter guideline may be more difficult to enforce.

"I don't think you can use photography or video anymore as evidence. It's too easy to manipulate...I don't see how it's going to stand up anymore," noted Gregory Stone, the director of Publications and Media Production at UMass Dartmouth. Stone is also one of the prime developers of the university's World Wide Web server, and deals with issues such as author ownership and copyright in electronic publishing.

But despite their easy manipulation, photographs are still too valuable as proof to completely eliminate from the courtroom. Cases such as the Rodney King trial depend almost solely on photographic evidence. Especially in an era where amateur photography and videography are flourishing, to ban photographic evidence from the courtroom would be absurd.

The answer then lies in proving authenticity. This would involve making the standards for authentication more stringent. Currently, there are two ways that photographs are proved to be authentic. The first is the silent witness theory, where the photograph exists as a "silent witness," and is taken as absolute proof that the images are in fact, real.

Electronic imaging presents several obstacles to this means of proof. First, the fact that a photograph exists is no longer absolute proof that the image presented exists. It may have been electronically manipulated, or even computer generated-where no original even existed. By plugging in mathematic computations, a nonexistent image can be generated on the computer. In all cases, the final copy can be transferred to film and then printed on photographic paper. So even the existence of a negative does not prove authenticity.

The second means of authentication is called the pictorial testimony theory, where a witness-not necessarily the photographer-testifies that the photograph does indeed depict the actual scene or setting in question. This seems the more reliable route to go concerning the possibilities of electronic imaging. The choice of witness could then be restricted to the photographer. Only they would know if the photograph were indeed taken and if it had been manipulated in any way. Journalism guidelines now often require that photographs be accompanied by some kind of byline stating if any changes have been made. Having photographers testify would accomplish the same goal.

Electronic manipulation also has drastic effects outside of the courtroom. It can be used (either intentionally or unintentionally) to depict people in a "false light," resulting in the tort of invasion of privacy.

One prime example occurred just before the November, 1990 governor's election. A Boston television journalist interviewed the two candidates, Democrat John Silber and Republican William Weld. During the interview, Silber reprimanded the audience for criticizing women who, like his wife and daughter, chose to stay home and raise a family rather than pursue a career. His comments seemed to imply that working mothers were selfish in leaving their children alone.

The Weld campaign used these comments to their full advantage, later employing them in a political advertisement. Using computer imaging techniques, Silber's image was enlarged and slightly distorted, making him appear more menacing and overbearing than in the original. The advertisement was widely criticized, and Silber tried unsuccessfully to have the commercial withdrawn. Had he sued for invasion of privacy (under the branch of false light), Silber might have had a case.

In this instance, and in most instances of electronic manipulation, false light seems to be the perfect claim for damages. Manipulation of photographs could easily present people in a way unbecoming to them. And, unlike the defamation branch of privacy invasion-where injury to reputation must occur-false light claims compensate individuals for personal trauma, regardless of whether reputations are injured or not. The only other element necessary for a false light claim is actual malice--where the image is knowingly manipulated or there is reckless disregard for its truth.

One possible protection against potentially misleading electronically-altered images is to require them to be conspicuously labeled. Not only would that protect the media from false light claims, it would restore the public's faith in the photographic image. Many newspapers have already adopted guidelines to inform readers of digital alterations. Other publications, such as The New York Times and the Asbury Park Press have forbid tampering with photographs, while the Los Angeles Times, and the Associated Press news service have adopted informal guidelines.

But the problem doesn't even end at visual images. Audiotape can just as easily be tampered with. In fact, it may have been the first medium to undergo digitization. Digital or sound sampling is already commonly used in the music industry, especially in rap music. This provides some interesting parallels to photographic digitization concerning copyright and droit moral considerations (where the artist is concerned about maintaining the original intent, integrity and quality of his or her creation).

The first, and perhaps most common consideration is that of maintaining copyright. If a photograph (or song, in this instance) is "sampled" and then used as part of a larger piece or the basis for a new creation, does the original copyright still apply? Or is the change significant enough in that it constitutes a new piece?

Photographers may find refuge in the Landham Act, the United States' principal trademark law. It protects against false designations of origin and false descriptions and representations.

When the comedy group Monty Python sued ABC for poorly editing a series of their programs and thus breaking up the continuity, they turned to the Landham Act. They were offended by the changes made in the series, and made the case that the American audience was not aware of the changes made. They won under the Landham Act.

However, later cases involving such droit moral considerations, where the personal and moral rights of an author are protected, did not hold up under the trademark law.

Not only does the Landham Act no longer protect photographers from their work being used or sampled in a manner they did not intend, copyright laws often do not protect them from out-and-out stealing. With the availability of computer manipulation, original works may be changed and published without the original author's knowledge or credit. Because photographs may be changed beyond recognition, infringement of copyright is difficult to detect.

So how do photographers insure that they are getting compensated for all the uses of their work? One such solution posed by Don E. Tomlinson and Christopher R. Harris in their article "Freelance Journalism in a Digital World" (Federal Communications Law Journal, Dec. 1992), provides a system of compensation based on a series of "credits" earned by photographers for each first-time published work. Whenever a publication purchases an original photograph, in addition to paying the photographer and stock agency, they also put some money into a fund which would be controlled by a governmental body. Depending upon the status of the publication-meaning, the greater or lesser possibility of that photograph being used again-the photographer is assessed a series of "credits." Based upon the number of credits collected, the photographer is granted a portion of the fund. This would not override actual copyright infringements or droit moral theories.

It is a complex solution to a complex problem, but one which lawyers, legislators and the media industry need to take into consideration. Labelling manipulated photos, requiring photographers to testify in court before a photo can be submitted as evidence, and providing a fund for photojournalists are just preliminary solutions to the ever- growing problems arising from the advancement of technology. We may never catch up to the technological changes being made, but we must begin the chase.

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