Letter to the editor

To the editor:

I'm pleased to see that you have devoted an issue of Afterimage to the subject of intellectual property (January/February 2004), never more urgent a set of concerns than now.

[ILLUSTRATION OMITTED]

Katherine J. Carver's lead essay on the VARA Act of 1990 in comparison to droit moral in France and in relation to photography is extremely useful in some ways. However, because her expertise is clearly not in photography, her commentary includes some significant misstatements and unclarities that require correction.

1. Carver's definitions of a "vintage" photographic print ("a print actually made by the photographer during his or her lifetime") and "non-vintage" print ("[one] not printed by the actual photographer who took the image") have absolutely no standing in the field and do not in any way reflect standard usage by auction houses, galleries, museums, curators, collectors, private dealers, and other specialists. (Notably, she cites no source for them--unusual in a law-school research paper.) By those definitions, for example, none of the prints attributed to--naming just a few--Mathew Brady or Nadar or W. H. F. Talbot or Cartier-Bresson are "vintage," since most of those prints were not made by the photographers themselves. Obviously, this is not how scholars in the field, or those involved in the market for photographs, view those works or use the word.

The term "vintage" itself is, of course, problematic to begin with; I've tried to sort it out myself in an essay titled "Photography as Material Culture: A Primer for Collectors--What Are the Vintage Years?" (published in Art On Paper, Vol. 5, no. 2, November-December 2000, and Camera Arts, Vol. 4, no. 5, October-November 2000.) The definition I propose and explicate therein is this: "The vintage photograph is a print made (or authorized and approved) by the photographer and produced close to the time at which the negative was exposed, using materials and procedures familiar and/or subsequently acceptable to the photographer who made the negative. It is only one of several significant kinds of print that may be produced from that negative over the course of the photographer's lifetime."

Whether Carver chooses to use my definition or instead takes one from elsewhere in the literature isn't the issue. Not using some commonly accepted definition and/or a clearly explicated definition grounded in a knowledge of how photographs actually get made weakens her argument considerably, and muddies the waters.

2. Carver claims that "Forgery of photographs is a common problem." She offers in support of that proposition one lone instance--that of the now-notorious distribution of forged Lewis Hine prints by Walter Rosenblum. We could certainly add to this the equally well-publicized recent case of the forged Man Rays. And then we could add--what, exactly? I don't claim to track the issue closely, but I do read the trades, and I can't bring to mind much more than some suspect daguerreotypes and a few other odds and ends, over the past 35 years of active marketing of photographs as objects. Carver's failure to cite even one more instance, or any overview reports of increased frequency of this presumably "common problem," or a single expert in the field who agrees with her, is notable--another unsourced and unbuttressed (and, in my opinion, unjustifiable) assertion.

3. Carver claims that "Determining whether the photograph is an 'original'/'vintage' is extremely difficult," and that "Traditionally, dating photographs has involved little more than studying the image for signs of age." As before, she supplies no supporting evidence for this blanket assertion. True, rigorous scholarship on such matters in photography is a mere three or four decades old. However, there are many ways of dating photographs beyond merely "look[ing] for the yellowing of the highlights and edge fading." Again, this muddled set of assertions reflects the author's lack of knowledge of photography as a medium and her failure to consult the literature thereof and the experts therein. Moreover, even if what Carver asserts were true, she indicates no specific way in which strengthening VARA would affect that situation.

4. Carver then proposes that "digital fakery presents the next important issue, particularly for fine art photographers, collectors, and dealers of fine art photography," prophesying that some hypothetical future forgery of photographs by digital means "will most likely cause more fraud and fear among collectors and dealers." Could happen, of course. But hasn't yet. And maybe won't. (How easily do you imagine someone could pass off a digitally reproduced "Moonrise over Hernandez" in the current market? Or a spurious Serrano?) The picture Carver sketches of an environment presently riddled with mounting instances of fraud and inhabited by photographers, collectors, and dealers quaking in their boots with anxiety over the production of fakes doesn't match my experience anywhere in the international photo world. This is sheer speculative fiction. Notably, yet again, Carver offers no single shred of evidence in support of this set of claims.