Digital Imagery: Legal and Ethical Issues

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People know that piracy is illegal, but at least two thirds of Australians are still tempted to obtain pirated material according to a recent Newspoll survey (Stafford, 2009), which found that almost half of the respondents were undeterred by the possible legal ramifications of such actions.

In light of the recent financial crisis, the results are understandable. Yet despite the economic downturn, Canon’s Consumer Digital Lifestyle Index reported that digital camera sales rose by 23% in the second half of 2008, with Australian consumers purchasing 2.6 million digital cameras, “reflecting the growing importance and integration of digital imaging in Australian consumers’ lives,” (GfK Retail and Technology 2009, p.2).

Illustrating the growing need to protect images and intellectual property in the digital age, Canon also filed a US patent application early last year for the development of new ‘biometric’ camera technology, which imprints the photographer’s iris onto images as a digital watermark. Canon posed the legal and ethical issues pertaining to piracy and the use of digital imagery, succinctly on their application:

“Even ordinary individuals can now create and distribute copies of digital images easily and inexpensively for purposes beyond private use. Accordingly, though the handling of digital images does not pose a major problem so long as it involves photography for personal enjoyment, the fact that such image data can be copied and distributed easily by unauthorised individuals has not gone unnoticed by those who circulate digital images as a business” (British Journal of Photography, 2008).

For the digital media designer, the risks of breaching intellectual property, trade practices and defamation laws are two-fold. As creators of original works across many industries on multiple platforms, designers face the obvious matter of exercising their rights in order to protect their material from plagiarism, moral rights violations and defamation. On the other hand, digital media designers must also beware of committing the same acts in turn, as their works can also be held under the same scrutiny.

This scrutiny is prevalent within the advertising and marketing industries, where digital image manipulation is commonplace. One such multimedia design company, Perth Print Design, specialises in “ready to print artwork”, which is ultimately constructed in order to generate profits for their clients.

“Visual manipulation gives you an opportunity to create fantastical images that cannot be achieved through standard photography alone. When an image is unique, it stands out to the consumer – and this translates into increased revenues,” (Perth Print Design, n.d.).

Ethically speaking, the digital media designer is bound by the rules which govern the particular industry of which they are a part. Both the advertising industry and media outlets which publish these advertisements have their own self regulatory bodies which enforce codes of ethics to which the designer is also bound. This is in addition to the Trade Practices Act 1974 (Cth) and each State and Territory’s Competition Codes and Fair Trading Acts. The rules and regulations specific to these industries all assert notions of truth and accuracy (Trade Practices Act 1974 ((Cth)) ss.52-53, Fair Trading Act 1987 ((NSW)) s. 42, s. 44, ss. 49-50, AANA Code of Ethics n.d., s. 1.2, Media Alliance Code of Ethics 1999, s. 9), yet much debate lies in how these guidelines are followed in relation to digital image manipulation:

“These particular clauses are relevant to digitally-altered or airbrushed images which are not an accurate representation of truth, and are, in some instances, grossly distorted to make the model even thinner than they are in reality. It is impossible for the average person to distinguish what is real from what is a heavily synthesized image, far beyond the reach of mere mortals,” (Media Code of Conduct on Body Image Working Group 2007, p. 11).

Multiple legal issues also arise when an image is digitally manipulated. Not only does the digital media designer have to be wary of copying someone else’s work, but there are also moral rights to consider, as well as defamatory imputations and even the possible breach of other laws on an international scale.

If copyright infringement is found to have occurred, the digital media designer could potentially be ordered by a court to compensate the copyright owner financially. This could be done by way of damages or an account of profits, where the designer or the company they work for is either ordered to pay the amount the copyright owner would have charged for the work, or they could be ordered to submit any profits made as a result of the infringement. Further costs could be incurred depending on the “flagrancy of the infringement” under section 115(4) of the Copyright Act 1968 (Cth), along with conversion damages based on “the value of the infringing articles,” (Baulch, 1998). Apart from civil suits, there is also the possibility of criminal charges and their consequent penalties.

Moral rights and defamatory imputations add further complications to the legal issues surrounding digital image manipulation. As these freedoms cannot be bought or sold, a designer must be especially careful to ensure that they do not violate these rights, even if the image copyrights belong to the designer. Repercussions for any alterations may range anywhere from public criticism to legal action.

“Defamation is concerned with protecting a person's reputation in the eyes of the community. Moral rights is primarily concerned with recognising and preserving a creator's link with his or her work” (Australian Copyright Council, 1993).

When TIME magazine received a public outcry due to the alterations made by darkening O.J. Simpson’s mugshot on the cover of their June 27 issue, TIME’s managing editor, James R. Gaines, published an editorial piece just days later explaining, “that no racial implication was intended, by TIME or by the artist”, “nor did we intend any imputation of guilt” (Gaines, 1994). Although there was no legal action taken, an argument for defamation certainly exists.

Some other famous examples of digital image manipulation involving celebrities include tennis player, Andy Roddick, “complaining about the way he's been portrayed” (SMH Online, 2007) on the cover of the June/July 2007 issue of Men’s Fitness after his arms were digitally retouched to appear larger, while actress Kate Winslet was digitally “slimmed down” (BBC News, 2003) for the February cover of GQ magazine to which Winslet protested that: “the retouching is excessive. I do not look like that and more importantly I don't desire to look like that,” (Hello! Magazine, 2003). In response, editor of GQ magazine, Dylan Jones, justified the image alteration by stating: "we do that for everyone, whether they are a size six or a size 12. It hasn't a lot to do with body size. Practically every photo you see in a magazine will have been digitally altered in this way".

Although the manipulation of images may be commonplace, it is not without consequence. Violating moral rights could lead to court orders for financial compensation, a removal or reversal of the infringing material (if possible), as well as mandates requiring a declaration by the offender to make public their infringement and/or apology (Australian Copyright Council, 2006).

By simply not giving credit where credit is due, or even through altering a stock photo without the express permission of the image’s creator, moral rights could be infringed upon. Even if the original creator’s work is found not to have been copied, mis-attributed or treated in a derogatory way, there are many other laws to consider for those who may have been the subject of image manipulation.

Internationally speaking, there are other laws such as the Right of Publicity and the Tort of False Light which do not exist in Australia, but do apply in other jurisdictions which are within reach due to the widespread capacity of the World Wide Web. In the United States of America (US), Dustin Hoffman v. Capital Cities/ABC, Inc. was one such case where the subject of image manipulation, Hollywood actor Dustin Hoffman, was able to sue under four different US laws relating to the right of publicity, trademark and competition laws for the misappropriation of his name and likeness, even though he was not the copyright owner of the images that were digitally altered.

Hoffman pursued legal action against Los Angeles Magazine for publishing a digitally manipulated composite image which had contained Hoffman’s head superimposed on a male model’s body, imitating captured still footage of Hoffman from the movie Tootsie. There were other substantial changes made, in terms of attribution in the captioning of the published photo, as well as the clothes that Hoffman was depicted to be wearing.

“The manipulation exploited and robbed the dignity, professionalism and talent of Hoffman and he was violated by technology, the court said” (Ho Kim, G. & Paddon, A. 1999, p.71).

Hoffman was granted compensatory damages of US$1.5 million as well as US$269,528.50 in legal fees along with entitlements to punitive damages (Dustin Hoffman, Plaintiff-appellee, v. Capital Cities/abc, Incorporated, Defendant, and L.a. Magazine, Inc., Defendant-appellant, 2001) by the US District Court. However, upon the review of the Ninth Circuit Appeals Court, this decision was overturned:

“The appellate court held that the magazine’s depiction of Hoffman
was not literal but ‘transformative’, was not an advertisement (which was pertinent as commercial speech is less protected), and was not intended to create a false impression that the body in the dress was Hoffman’s” (Caudill, 2004).

In addition to the laws and ethics a digital media designer is expected to abide by, there is also their own reputation at stake, if the case should arise, where the designer is held accountable for breaching these regulations. This has already happened in two notable instances during 2003, involving ex Los Angeles Times photojournalist, Brian Walski, who was fired for combining two separate images into one composite photo, and The Charlotte Oberver’s Patrick Schneider, who had three photojournalism awards revoked by the North Carolina Press Photographers Association for “overly darkening some portions in the digital editing process” (Background Altered – Observer photographer loses awards 2003, 15 August, p. 1).

Schneider consequently lost his job three years later due to another photo retouching incident, which Observer Editor, Rick Thames, explains: “In the original photo, the sky in the photo was brownish-gray. Enhanced with photo-editing software, the sky became a deep red and the sun took on a more distinct halo.

"Schneider said he did not intend to mislead readers, only to restore the actual color of the sky," the note continues. "He said the color was lost when he underexposed the photo to offset the glare of the sun." (Thames 2006, cited in Lang, 2006).

The ethical issues and legal ramifications for a digital media designer are robust, complex and yet still in their infancy, as they continue to evolve with the growth of the digital media industry. It is as Peter Giles, director of digital media at The Australian Film Television and Radio School, describes: “digital media is all about change”. “In the digital world, if you blink, you miss it and you’re left behind,” (Giles 2007, as cited in Jordan, 2007).

“There are jobs that didn’t exist a decade ago, in areas like mobile content and visual effects, and others that evolved out of existing careers in industries such as marketing and publishing.

While the developments have been particularly profound in media and communications, every sector of society has been affected” (Jordan, 2007).

The issues surrounding digital image manipulation in contemporary society are multi-faceted and multi-national. A digital media designer walks a fine line between compliance and infringement in their daily work practices, whether they are altering images, designing websites or other forms of content for a specific delivery format.

“Laws and treaties have traditionally been made and enforced by nation-states operating in a patchwork of territories. Now, the media and technology marketplace is being globalized in digital networks. The law is only beginning to respond to this change” (Geller, 1998).

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