Copyright and the Photograph

I recently entered a competition that had the following clause:

Each artist warrants that he or she has obtained all necessary releases from models and other subjects featured in photographs selected for exhibition and any additional releases required with respect to names, trademarks, designs, or works of art depicted in the photograph and that the creation, display, or distribution of the photographs will not violate any law.

This made the editing of my new project, "City Walls" extremely difficult, even though all of the images were shot on public sidewalks and were technically public domain. In the end I pushed the edit to nearly total abstraction. 

Recently I posed this question in class: Can a photograph be made that is not appropriation? I ask this with all seriousness. Considering the clause above - can a photographer make even a still life without releases from the corporations that manufactured the object in the still life? In graduate school one of my peers was sent a cease and desist letter from Mattel for using her Barbie from childhood in the photos. Students have been run out of parking garages for making aerial views of the city, because they own the view. 

Thinking back on photography's invention and how daguerreotypists invaded the world making photos of anything and everything. Then, the world was thrilled and enchanted by this new invention. Now almost 200 years since Nicéphore Niépce made the first photograph of his courtyard, photographers are routinely sued even when they have releases, and oftentimes they lose the case.  This litigious shift in photography regarding privacy and ownership combined with the possiblities of digital technology are radically shifting the role of the photograph.

In Vince Aletti's essay on the topic "Is Photography Over" he offers his thoughts on the matter:

What's over is the narrow view of photography — the idea that the camera is a recording device, not a creative tool, and that its product is strictly representational — not manipulated, not fabricated, not abstract. ... Photography over? More often these days, it feels like it's only just begun.

Although he was talking about photography in general, one aspect changing in the medium is permission to make the photograph. While I found the editing challenging, it made me focus on the formal attributes of the work and freed me from representation. In the end this was a gift.

Photo Credit: Rene' West, Riot Gear, from the series City Walls © 2010