Friday, 23 January 2015
The New Zealand media, are publishing with relish (23 January 2015), 4 photographs taken by commercial freelance photographer Mr. Geoff Walker, of the awful Carterton balloon tragedy from 2012. Mr. Walker objects to this, but the Courts have said that the photographs were produced in open court and as the media have opined, “their publication is in the public interest.” Is it really? What are the issues at play?
Some family members of the deceased say that it is right that these images are published because it will highlight to the public, the risks of ballooning. This argument can easily be dealt with, and will be addressed first. Balloons have been defying gravity for years. For as long as hot air balloons have gone up, they have also come down, in controlled and uncontrolled ways. There are numerous pictures of crashing balloons readily available. Further, the media regularly carry images of crashed and mangled cars, and most of us still elect to drive. Further, we all know that from time to time aircraft crash, yet most of us still elect to fly. There is in short little educative value in the public seeing yet more images of a burning balloon dropping from the skies.
What has not been discussed in the media is that Mr. Walker is a professional photographer. He derives his living by taking photographs, the copies of which he sells. All images he takes are copyright. Mr. Walker was an associate of Mr. Hopping a hot air balloon operator. Mr. Walker would frequently attend at the morning balloon rides and would photograph the people and various stages of the ballon rides. Mr. Walker would then sell CDs of the balloon flights to passengers for a fee if they so wanted.
On the morning of the balloon crash (7 January 2012) Mr. Walker was in attendance and photographed the inflation, and other aspects of the balloon ride. After watching the balloon take off from its point of departure, Mr. Walker was travelling to the projected landing destination.
Mr. Walker took photographs of the crash, the ensuing fire and recorded on film the accident. As the balloon was descending at a faster rate than normal, Mr. Walker began to take photographs from the road side where he pulled his car over.
After Police arrived under the direction of a detective he took photographs for Police. Apparently Mr. Walker never asserted any proprietary right in relation to those images.
Out of a spirit of goodwill to assist Police with their inquiry Mr. Walker provided access to his own images. At all stages Mr. Walker’s clearly asserted his copyright in terms of every image he loaned to Police. Police of their own motion, without consulting Mr. Walker took his images and provided them to the Office of the Coroner.
Without consulting Mr. Walker these photographs became part of the evidence in this inquest. The news media, in particular TVNZ, a commercial enterprise, that in relation to its own news services asserts its copyright over its news content applied to the Coroner to use without Mr. Walker’s consent, or payment of any fee to Mr. Walker, four of the images that Police took without Mr. Walker’s consent and provided to the Coroner.
This case clearly raise profound public interest arguments. Some will argue that this is a profound tragedy and it is immoral for people to make money out of the misfortune of others. There are two arguments to this. First, Mr. Walker has never sought to “cash in” on the photographs. Rather he is merely asserting his intellectual property rights over his images. He in fact turned down lucrative offers from local and international media for access to the images in the aftermath of the tragedy. Second, so what? Police, ambulance officers, undertakers, embalmers, florists and even coroners and some lawyers etc are all paid or derive income from tragedies. There is no moral difference with a photographer doing the same.
At issue in this case, amongst other things, is that in allowing publication of the images without Mr Walker's consent is to deny Mr. Walker control over his intellectual property and then sees the handing of a selection of his images to a commercial media organisation that asserts its own copyright over those images.
There is also a strong public interest argument at work. Might it not be that had Mr. Walker known that Police would use his images in the way that has transpired, that he would not have been as co-operative in the first instance?
While it might be argued that Mr. Walker gave Police access to his intellectual property, he did so under licence. He did not relinquish ownership in his property when he did that. In the same way as a person might hire a trailer from a garage, the initial act of taking of the trailer under conditions is lawful. It becomes an entirely different matter when one refuses to return the trailer in compliance with the terms of hireage, or uses the trailer outside the terms initially agreed.
No matter the words used by the Courts, for a third party to then publish Mr. Walker’s images, without seeking Mr. Walker’s licence for their use sees him lose control over the use and distribution of those images. In essence his proprietorial rights of ownership and control are lost and or ignored, having been supplanted by another party that asserts its rights over those of Mr. Walker.
A coronial inquiry is an inquisitorial inquiry. As the Ministry of Justice website says, “[t]he coronial process is fact finding, not fault finding. This means it is not there to blame or punish anyone, but instead it aims to work with the families of the person who died to try and answer any questions they might have, and to improve public safety.” Ideally participants operate to assist with the public interest goals and ultimately broader social good. In this context, such public mindedness would be undermined if professionals in the shoes of Mr. Walker were to lose control over their intellectual property through assisting Police on a voluntary basis with the investigation of fatal accidents.
While there is a public interest in having relevant details reported, there is also a strong public interest in having intellectual property rights protected, and in having people feeling that they can co-operate in an unfettered way with volunteering information and assistance to Police in the investigation of deaths, without their legal interests in their intellectual property being eroded or as in this case lost through the fact of this co-operation. To accept without challenge what has happened to Mr. Walker may likely create a chilling effect for professionals. After all if they seek to assist Police they could see their legitimate commercial expectations over the control of their work eroded in favour of corporate media interests who use “open justice” as a tool to evade having to seek the permission of and pay the owner of the copyright for the use of that owner’s intellectual property.
As a result of what has happened here, a public spirited professional, a photographer has lost control over his intellectual property. This must cause others, should they find themselves in a similar situation, to think twice about their willingness to assist Police. Such a chilling effect is unfortunately a natural outcome as professionals have just seen the erosion of their intellectual property rights in favour of commercial news media. Perhaps such people may not be so public minded in the future. Such an outcome cannot be in the public interest.