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The photo that ignited the storm ― Janis Morrison’s Botanical Beach at low tide – Vancouver Island, BC
Victoria art world abuzz
As reported by Victoria Buzz yesterday, local company Blue Heron Art Enterprises, owned by Suzanne Heron, has apparently been caught red-handed passing off photographers’ work as their own “art prints” and cards.
I was alerted by a friend on Facebook, should some of my photos have been be used in the company’s offerings. Products include “archival pigment [prints] on archival canvas,” calendars, and greeting cards.
Photographs appear to be crudely manipulated with filters to ape paintings. Why someone would buy this kind of crap is another matter (more on that later), but photographers whose work has apparently been appropriated for this kind of abuse are likely less concerned with that than the plain fact their images have been lifted without consent.
Blue Heron products, available through scores of retail outlets across the province, have also been sold at Victoria-area art fairs, such as the Sooke Fine Arts Show and The Moss Street Paint-In. Reportedly, that’s where Heron’s ruse was first spotted.
The fine image above, by Janis Morrison of Fresh Air Photography, was offered as a print at the Sooke venue. Trouble is, Morrison had only given permission to Heron to reproduce a facsimile as a calendar image, back in 2015.
“This boundary was broken,” Morrison told me via text message, “when she felt she could take the image and profit from my work with little alteration. She sold to numerous businesses and entered into markets selling this artwork along with many other people’s photographs used as basis for her digital painting without permission.”
Morrison’s complaint echoes that of other affected photographer’s who I’ve corresponded with.
“We own thousands of dollars worth of camera gear … we spend hours looking or driving for the right location, the right light and then haul that gear to the location, usually up or down some trail that isn’t a get out of the car and take a snapshot place. I have fallen, tripped and almost lost my gear in the ocean or over a cliff while trying to get “that” shot. Then we go home and spend time processing and working on images taking them from the raw image that we have captured in our cameras.
“To then have someone with merely a click of a mouse take your photograph and call it their own is heartbreaking to say the least.”
Broken links
Incriminating evidence on Blue Heron’s website and Facebook page soon began to disappear, with the result that illustrating links on the Victoria Buzz page followed suit, including a National Geographic photo of Washington’s Ho Rainforest, passed off as a scene from the Kootenays.
That’s where Google cache comes in handy. I began to compare caches against live pages. Here’s the result of one comparison:
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Cached Blue Heron Arts web page
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Blue Heron Arts web page, live August 30
Social media commotion
Last night, as the furor around the story grew on Facebook (example here), Heron issued the following statement, posted to her site and Facebook page:
“The few times I use another photographer’s image as the basis for my work, it is my practice to gain permission and give them credit. I have recently learned much more about Canadian copyright laws that impacts some pieces. I am in direct communication with all the individuals involved and I am committed to a positive, satisfactory resolution for all concerned. I can clarify further when I am confident that those involved are satisfied.”
As I replied on her Facebook post (since hidden, along with many other indignant comments), that she would, just now, be learning about Canadian copyright law, seems to stretch the limits of credulity. At any rate, the example above is just one of many such deletions, so Heron seems to be learning that a number of images she has claimed as her own contravene those copyright laws.
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Manipulated images that have vanished from Facebook and Blue Heron’s shop (which, incidentally, is not protected with SSL encryption) include the well-known photo of hand-holding sea otters, by Virginia photographer Ken Conger. Heron was/is (? see update below) using it on cards and prints, bastardized, of course, with amateurish painterly effects. Prints are signed “Suzanne.” The $160 price tag includes a “Certificate of Authenticity.”
I spoke via email with Conger this morning. Apparently, I was not the first from this area to contact him regarding the apparent unsanctioned use of his image. He told me that he had “resolved the situation with Heron.”
What is a “real” photograph?
It goes without saying that beauty is in the eye of the beholder. Good taste can’t be imposed from without. If someone wants to blow $300 on a counterfeit, so be it. Nonetheless, it saddens me that a photograph tortured with “filters,” or copied via a digital painting tablet, as Heron claims, would be preferred over its authentic counterpart. Forgive me if I’m not flattered when someone says of one of my photographs, “Gee, it looks just like a painting!”
The “art” in question might be compared to black velvet painting, were that not an insult to black velvet painting.
All photographers who labour to make quality prints would like to think that the public can discern good work from bad. But is it art? That’s not a question I entertain seriously, preferring to deliberate on the perhaps less subjective matter of quality and authenticity.
If one wishes to invest in good photography, learn from the master works. Legitimate photography dealers have consistently valued prints made by the photographer over later versions, say, made by assistants. It goes without saying that purloined copies are next to worthless.
Conclusion
If Blue Heron Art Enterprises can be credited with one thing, it is that they seem to have built a successful marketing company. Photographers who wish to do business with them would be wise to take care of their part of the imaging trade.
There is a lesson in this confab for all aspiring photographers: know your rights and always have a proper contract in play (a verbal agreement or email is not sufficient) when selling rights to your work. What kind of licence are you offering? — understand the limits of the licence you are selling and make sure the licensee fully understands. A contract clearly sets out terms and conditions of use.
There are plenty of templates available online. Draw one up that satisfies your needs. Have a lawyer that specializes in contracts help you nail down the specifics.
Be familiar with your rights and make sure those you do business with understand copyright law in your jurisdiction. Here’s a primer on Canadian copyright law.
Never sell full rights to your work.
A less straightforward question concerns kind of end-product you are willing to associate your work with, and that’s entirely up to you. In my opinion, allowing one’s name to be associated with inferior products or those manipulated to obliterate your personal style is unlikely to advance your career.
Updates
Sept. 5
- Good Planet, a retail store that carried Heron’s products, issued this statement (on Sept. 1).
Sept. 2
- Since a facsimile of Ken Conger’s cuddly otters is still being offered for sale as cards and prints on Heron Arts’ website, I’ve written to ask if his settlement included permission for Heron to continue doing so, with Heron’s signature attached. I’ll update this if I receive an answer.
- Conger is understandably reticent to reveal the terms of the agreement and requests that the people who are contacting him about the conflict would desist.
Sept. 1
- The Victoria Times Colonist has picked up on the story. Victoria News also covering the brouhaha. Both stories characterize the actions of Heron as a “mistake.”
- This post updated to include statement from Janis Morrison.
Aug. 31
Royal BC Museum, who have been selling Heron’s products, has released a statement.
Aug 30
- 14:30 —The Art Gallery of Greater Victoria has released a statement via their Facebook page announcing that they have “removed all images by Suzanne Heron from our TD Art Gallery Paint-In artists’ webpage” and future submission material will include a clause where artists must acknowledge an understanding of the Canadian Copyright Act.
- CTV News Vancouver Island report.
Gregory - Copyright has always been a huge question mark in Canada in regard to photographs.The Copyright Act was finally changed in 2010 and not by the will of the then Harper government but because of the sustained pressure from the G8, G16 and the WTO. Prior to the change, when it came down to photographs it was broken down into two categories,speculative and commissioned or assigned. What is the difference? Speculative would be considered photographic works that a photographer would produce on their own, from idea to final print or image. Commissioned or assigned would be work a photographer was hired to produce, example a portrait, wedding, event etc. With speculative the photographer was the owner of the copyright of the work they originally thought up and created. photographers can licence these works for use via a stock agency or a periodical suck as a magazine, newspaper etc.Commissioned was another can of worms. The photographer owned the copyright to the photographs produced until the moment of payment. The copyright ownership then transferred to the entity that hired and payed for the work. This was implemented in the early days of photography to protect nobility who hired a photographer to produce photographs of themselves, their families. Political figures etc. It made the photographer not only provide prints but also hand in negatives. This way the person or entity had control of all photographs and could control who had access. Basically, they had control over the photographs. For years the fight went on to change the act as far as photographs and illustrations were concerned, CAPIC “the Canadian Association of Professional Image Creators” was formed in the 70’s to address this issue. You could register for copyright through Access Copyright but only speculative published works. They would track licence and seek residual payments of work used. The act was finally updated to the global standard under the WTO Intellectual Property Act.So commissioned photography is under the act. Photographers and illustrators are the owner of copyright of the idea or concept of the image created but also the image itself. It has also been updated to cover visual creators in the digital arena. So, what does this all mean to you the creator? You can now register your work as your own at the “Canadian Intellectual Property Office” and pay a small fee to do so. Rights to use is up to you but there is a standard and you should never give any work away to anyone, your work is intellectual property and has value, it’s money, so do you throw money away? I don’t, when people ask me for a print, I tell them straight out why don’t you buy it? I like Phillips Blue Buck beer, every time I ask for one for some reason, they make me pay for it! Go figure. So why not ask for payment? Everyone else does. Licencing! If you make a contract to have your work reproduced, licence it. Set a limit of use, where it’s used, and how many will be produced, then set the royalty for each sold. That’s just the start, It gets even more interesting as you move forward especially as digital assets go. I hope this cleared some air. Gregory VaranoArtist/photojournalist August 31, 2020 – 8:51 pm
Raymond Parker - Thank you for elucidating some of the elements of the Canadian Copyright Act. You may have missed that I provided a link to the CAPIC page above, in my post. It covers much of what someone unfamiliar with the law should take care of. Just a note: there is no pressing need to register one’s work in Canada, since, as the government admits, “your original work is automatically protected by copyright.”
If an artist feels they might need additional “evidence” of ownership, sure, registering is an option. Personally, I don’t bother.
Elsewhere on this blog, I’ve told the story of a final negative buyout by a long-standing client who benevolently paid me $100 for years of work — a payment they were really under no obligation to make, since the originals were created under the old “work for hire” rule. These days, of course, following the 2012 rewrite of the law, I’d own all the originals.
My take on this debacle is that the amateurs involved did not take care of business when it comes to copyright and blundered together into the resulting conflict. Without absolving the perpetrator, as I said, the photographers who had dealings with Heron and were exploited should have made sure that they had written contracts specifically outlining the rights they were offering. I’d add, if they originally made a deal to;offer any rights for free … well, that’s just silly.
September 1, 2020 – 8:20 am
Kelly - The otter “print” is still for sale…August 22, 2018. I took a screen shot with date if that is of interest.August 22, 2018 – 11:43 am
Raymond Parker - From what I understand (see the updates above) Ken Conger was amenable to having his original photo used in this way. Unfathomable to me, but stranger things have happened. I asked him why he’d agree to such an arrangement (which, to my mind, degraded his work) only to be told to mind my own business. August 22, 2018 – 9:24 pm
L - July 8th, 2018 – she is still selling images with her signature on them that are not her own (Oak Bay night market)August 9, 2018 – 8:48 am
Raymond Parker - Thanks for the update. It may be (and this is only speculation on my part) that she is signing prints from original images made by photographers willing to have their work altered in this way and with whom she has reached some kind of agreement. Now why any photographer would consent to have their images doctored in this way is beyond me, as is the idea that anyone would buy such a thing … but each to their own, I guess.
Meanwhile, I can report that some photographers who did not agree to the proposed deal are still trying to get compensation.August 11, 2018 – 10:21 am
Lindsay - Great article, thanks for keeping track of thisSeptember 4, 2017 – 10:36 am
Raymond Parker - Thanks, Lindsay. I must say it’s been a bit of a distraction from my main work, but I believe it is an important issue to highlight. In the digital age, photographers could spend all their time tracking down unapproved use of their images.September 4, 2017 – 11:11 am
Susan Carrick - Hard to believe this photo appropriation debacle was just a “mistake.” Thank you
for sharing this story. I am not an artist and just an average
photographer. Even I know that you cannot claim someone else’s work as one’s
own and I know there are laws and penalties for copyright as well. I imagine
this has happened to you as well with your works. I sure hope she has to make
restitution to those she has stolen from….and to me that is stealing if you
have not received permission from the artist.September 2, 2017 – 11:32 am
Raymond Parker - You are right, Susan, that unapproved appropriation of my work has affected me over the years. Any photographer who has been around the block will have come into contact with some form of pilfering. As I’ve appended in the conclusion of this article, sometimes inexperienced photographers will also get themselves into a conflict by not exactly prescribing the terms and conditions of usage with a clear, formal contract.
Still, at the end of the day, copyright resides with the creator of the image and those reproducing images in any way, shape, or form are ultimately responsible for taking care of their side of the business.
This isn’t law advice, but it’s generally the way things should go to avoid such conflicts.September 2, 2017 – 12:06 pm
Conor Ahern - Ignorance of the law is no excuse.September 2, 2017 – 9:22 am
Raymond Parker - Yup. That’s a basic tenet of law, isn’t it?September 2, 2017 – 10:12 am
Janis Morrison - Thank you for a very well written blog article!September 1, 2017 – 6:19 pm
Raymond Parker - And thank you for granting me an interview. It rounds out the report, having the perspective of someone directly affected by the actions of this company. Feel free to update your comments with any new developments.September 1, 2017 – 8:32 pm