Eclipses, Copyrights and Late Stage Capitalism

Four things of note. Guaranteed three of them are great. You pick!

Did you see the big shadow?

There was an eclipse this week. Perhaps you heard about it. 

I ventured nearish to the path of totality so I experienced 99% of it, but I’m simultaneously afraid of the dark and of commitment so that was plenty. 

Later that afternoon, as I was preparing dinner and thinking about some of the interesting eclipse photos already popping up across the socials, it occurred to me that I was seeing something unique to the power of photography demonstrated in real time. People really wanted to photograph the eclipse for themselves and share those pictures with an audience equally eager to receive them. 

Even though we’d collectively experienced totality eight years ago, and even though that experience made clear that 100,000 earthbound photographers aiming their supertelephoto lenses at the corona were going to reproduce 100,000 versions of roughly the same shot, we still wanted to do it. We wanted to see it and shoot it for ourselves. Just like phones at concerts, we collectively want to capture proof that we were there. 

This is something photography does that no other medium—save video, which is just photography made really fast—can do. It’s the thing that might be most special about photography. We see it as the truth. 

Of course there are countless ways that photographs lie—from what we leave out of the frame to what we Photoshop in, this is well covered territory. But on the whole, no matter what challenges the medium has faced for the better part of two centuries, we still regard it as essentially true.

It was at this point that I stumbled upon a devilish idea to prove a point in snarky fashion. So in between breaking my spaghetti and warming up the ragu, I texted my friend Dan. “Hey, can you ask Midjourney to make me a picture of a solar eclipse over St. Louis?”

Dan stood in his kitchen in New Jersey, exactly 938 miles from where I stood in mine, and said sure, no problem. 

Mere moments and a bit of fine tuning later, I had what I was after: a photorealistic depiction of the event of the day. It looked simultaneously great and terrible, and to anyone with any experience on the grounds of the Jefferson National Expansion Memorial, entirely unbelievable.¹

Midjourney’s AI-generated illustration of the eclipse.

I couldn’t wait to share it via shitpost to my cadre of #PhotoThreads acolytes.²

“Since AI is going to replace photography,” I wrote, “I went ahead and had AI generate this image of today’s eclipse.”

It seemed to me quite obvious, my point, and so when I called this pseudo-photograph a pitiful replacement for the real thing, a couple of commenters inquired what’s so bad about it, it looks pretty good they said, where’s the problem. It would be helpful in times like this if I could just be straightforward rather than quite so charmingly pedantic, so instead I’ll try that here: It seems to me that this is proof positive that no matter how photorealistic or beautiful or generally interesting an AI-generated image is, it remains an illustration—or maybe more aptly an illusion. There is nothing wrong with that, of course, but it is fundamentally different from the tacit truth of a photograph and therefore I believe for all the things in life of which we want actual photographic proof—like eclipses and concerts and all sorts of stuff—AI images pose no meaningful threat. 

No matter how AI takes over other aspects of our lives, it will never eliminate our need—or at least our desire—for the real thing. 

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A rare copyright victory

Back in February I read about a particularly rare copyright victory for photographers but neglected to share it with you. It’s big news so… Better late than never.

Richard Prince, the appropriation artist who made an appearance in my Lynn Goldsmith/Andy Warhol copyright piece last year, was for the first time unsuccessful in defending his work from a copyright infringement lawsuit. Mostly.

The plaintiffs in the case were photographers Donald Graham and Eric McNatt, who sued Prince when the latter used Graham’s photograph titled “Rastafarian Smoking a Joint” and McNatt’s portrait of musician Kim Gordon, reprinting them in a faux-Instagram style for inclusion in his controversial exhibition, “New Portraits.” 

Prince, along with co-defendents Larry Gagosian and Gagosian Gallery, will pay a total of $900,000 to the photographers and their attorneys. The parties agreed to settle the case after eight years of litigation, with the court entering a judgment in favor of the plaintiffs and barring Prince from reproducing, selling or displaying the works in question—effectively surrendering them to the photographers.

The best read on the subject comes via the APA, which published an interview with Graham reflecting on the case. In the piece he explains that Prince and Gagosian offered a large sum early in the process in an effort to persuade the photographers to drop their cases, however Graham’s goal wasn’t financial but rather a courtroom verdict in favor of the plaintiffs in hopes of bolstering copyright law. 

In 2023, judge Sidney Stein denied Prince’s claims of fair use, which signaled his likely defeat should the parties fail to reach a settlement. That the case was eventually settled may be viewed by some as lesser than a true courtroom victory and repudiation of appropriation art—Prince’s legal team, for instance—but Graham doesn’t see it that way. 

“This judgment…” he says, “represents the only time Richard Prince has been held legally accountable for copyright infringement. This is a celebrity artist who is in his sixth decade of appropriating other artists’ works without seeking permission, providing attribution, or paying remuneration. He has served as a high-profile, living example of how to achieve enormous financial success through stealing other artists’ works without legal consequences—until now. So, in addition to the legal importance, I believe there is real symbolic importance to the outcome of my case.”

Perhaps most illuminating, and mildly terrifying, is the elucidation of legal tactics aimed at photographers when they attempt to defend their copyrights. Graham explains that when he initially refused to settle, Prince’s legal team employed Rule 68. 

“In lay terms,” Graham explains, “Rule 68 says that if I won but the judgment was less favorable than what the defendants offered, I would be liable for paying their costs. This would have been at least in the hundreds of thousands of dollars and, if attorney’s fees were to be factored in, many millions more. Let that sink in: I win my lawsuit and potentially pay the losers—a lot.”

Rule 68 isn’t the only factor that makes photographers think twice before taking infringers to court.

When photographer Lynn Goldsmith initially approached the Andy Warhol Foundation to inquire about a possible infringement, they preemptively sued her.

An I.P. lawyer recently told me—in conversation, not as counsel—that there’s danger in sending cease and desist letters to alleged infringers out of state. Why? Because a letter from a New York photographer to a California infringer effectively establishes legal justification for a lawsuit in California. It’s called a declaratory judgment lawsuit and, in this example, would require the New York photographer to defend their position in a court across the country.

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On the inevitable capitalization of our every waking moment 

Not to sound alarmist, but I just about fell out of my chair when I read about Sony’s new for-profit firmware update. For the princely sum of $149, owners of Sony’s A7 IV can install an update that will enable the camera to display custom gridlines³ in the viewfinder, LCD and via HDMI output to external displays. This is actually a pretty handy feature—like heated seats in an automobile, for instance—which is maybe why Sony followed carmaker BMW’s lead in going the “pay us money and we’ll turn on features” route. I’m not the only one who immediately thought of BMW’s plan to charge a monthly fee to subscribe to heated seats, but thankfully the backlash seems to have been great enough to talk them out of it. It occurs to me that while Sony’s fee is one-time, I see no reason they (or any other camera manufacturer) couldn’t require a monthly update such that when you unsubscribe you no longer get your gridlines. It works for HP with printer ink, so why wouldn’t it work for a cameramaker for, say, in-body image stabilization or face recognition autofocus?⁴

A little bit of unsubstantiated scuttlebut I found implied that perhaps the steep fee for this seemingly straightforward feature could stem from a patent-holder’s licensing agreement without which the feature simply would not come to the cameras. If the choices are between $150 for an optional upgrade, or no chance at the upgrade at all, the steep fee seems to be the lesser of two evils. 

While Sony’s recent introduction of firmware-for-a-fee blew my mind, I should have seen it coming—not only because they announced the plans last fall but also because they’re not the first camera maker to do such a thing. (This is the downside of tuning out most gear-related press releases.) Cinematographers are likely familiar with the idea of paying for special features via firmware update, as Panasonic Lumix camera users can upgrade to the “S1 Filmmaker Kit” to add features for improved color and higher frame rates at higher resolutions plus a few other features, all for the same fee as Sony’s custom gridlines. So the precedent has been established. I think it’s about time we come to terms with the idea of unlocking camera controls via cash. 

You’re likely to read glass half full types saying “if it gets the cost of the camera down, I’m all for it.” But I know there’s no chance camera makers are going to eliminate features and sell them as add-ons and lower the price. We might see the first two parts of that equation, but never the third. It’s the camera world’s version of shrinkflation. “I’d swear this camera used to come with autofocus.”

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How much equipment do you really need?

There’s been a lot of discussion in my social spheres lately, at least among a certain set of VOPs (very online photographers), about whether there’s too much gear talk or not nearly enough gear talk. I’ve found myself deep down more than a few rabbit holes on the topic, which led me bleary eyed to the unbelievable Reel of Dan the pottery man. 

The TL/DR is that Dan took a pottery class and enjoyed it. Yada yada yada, $100,000 later and he’s turned his new house into a fully functional pottery studio that would make many university programs green with envy.

I don’t begrudge Dan his love of pottery and all the equipment it requires to make the most of his passion, but it did get me thinking about how some art forms are very gear intensive while others are not. Dan outfitted a teaching facility in his spare garage, complete with upgrades to plumbing and electrical services, plus kilns, pottery wheels and every kind of clay under the sun. So when he revealed it only cost $100,000 for all this stuff, I thought about how quickly I could get to $100k in photography. Let’s see… A couple bodies, five lenses, and a few studio strobes would get me more than halfway. Add a loaded Mac Pro and a couple displays and, ope! Have I gone over budget? Not quite but we’re getting close.

Which then led me to ponder this: what art forms are the least dependent on equipment?

Soccer is popular, for instance, because it can be played anywhere with any round object. A pretty low barrier for entry. What’s the art world version of that?

Photography strikes me as one of the more expensive disciplines. Painting strikes me as fairly inexpensive, in that your paints and brushes are not particularly cost-prohibitive, but you need a lot of them. And canvasses too! 

Drawing, on the other hand, requires paper and pencil. Progress! 

Sculpture and ceramics probably get pricey pretty quickly, as Dan the pottery man depicts in his video. While it can be started affordably, no doubt, the better you get and the more you want to try, the more stuff you need to buy. 

So what’s the ultimate anti-gear art form? As best I can tell it’s writing. If you’re into longhand, you can do it with any old pencil and a pad of paper—five bucks all in. Say you’re a modern man like me and you’d rather type than write. Still not terrible. I’m writing this on a Macbook Pro I purchased from eBay two years ago for the princely sum of $300. Even if I’d bought a new computer that’s $1,000 all in—barely a third the price of my 70-200mm zoom lens. The software upon which I’m writing this is free and lives in the cloud. And everything I’ve written for Art + Math has been done on this $300 device. Not a bad ROI.

Is there an art form more affordable than writing? If so, I'd love to know about it. Until then I’m going to continue encouraging my kids to play soccer, draw and write—concentrating on creative pursuits that don’t tie them to a system of neverending upgrades to gear. Or even worse, a subscription. “To access the caps lock key please upgrade to the Platinum package.” 

1. There’s a big river, for instance. 

2. Weirdly, I had more than a moment’s pause as I considered the implications of asking my friend Dan to create an AI for me rather than doing it myself. Like, would I be passing off his work as my own? Then it finally dawned on me: it’s nobody’s work. It’s just AI. If I’ve got no problem asking a machine to make a picture for me, I shouldn’t have a problem asking Dan to ask a machine to make a picture for me. 

3. Custom gridlines are, like, the ability to put multicolor lines for framing assistance. It’s an old-school practice that is incredibly helpful for a commercial photographer who needs to match an art director’s layout precisely. I’m old enough to have actually done this with clear acetate taped to my 4x5’s ground glass. Yikes. Boomer. I even have a removable acetate for a client I carry around in my camera bag, and stick to the camera’s LCD when it’s time to compose the shot. So custom gridlines would be pretty handy for me. Not $149 handy, but still handy. 

4. I bought a new printer a couple months ago and actively avoided HP for this very reason. So maybe that’s why a manufacturer might steer clear: bad press is bad for sales.