It's pretty clear in the real world who owns things: a car, a company, a piece of artwork. But in the world of online, this is still pretty hazy notion. A minor irritant when it comes to possessions, but what about when it comes to your face?
There’s a fascinating case going on at the moment in the web 3 world. Pictures of renowned brand Hermes’ bags have been created as non fungible tokens (NFTs) and sold online for rather large sums of money. Hermes has now challenged the digital artist, Mason Rothschild to ownership rights over those pictures. Which begs the question, who owns a picture of your property?
Should this go to court, which it likely will, the case outcome will set a precedent for a whole new way of thinking about our pictures, possessions, and even our identities. So who has the rights to what?
I grew up in a time where having my photo taken was a pretty big deal, having it put up on a wall for public view was an even bigger deal, and that ‘public’ was only ever people allowed inside my house. That meant it was highly unlikely for anybody to see an image of me other than people I already trusted and let into my personal space AKA my home. We had complete ownership rights and control over all aspects of pictures, including who got to see them.
Today is just simply, different. We live in an age where before people are even born, photos of them as a fetus are published on a worldwide forum (think Facebook, Instagram etc.) The people that get to see those photos in the first instance are the friends and family of the person sharing them. But once shared, they’re able to be picked up by anyone. Potentially I’m old fashioned, but I find it slightly eerie that photos of myself exist on the internet for anybody to see and do with what they will. I’ll get slightly personal for a second and give you an example from my own life. A young teenager I care deeply about had some photos taken from Facebook and put up onto a sex site for people interested in her particular body type. We stumbled across them during an image search. This taking and sharing of the pictures was completely without her knowledge, let alone permission. Our ability to get the pictures removed was, both physically and legally, difficult. Even years later, the thought that people had taken an image of this lovely 13-year-old girl to share with others who found it sexually appealing still cuts me.
So who owns things now? You could argue that before a certain age a parent owns the right to share a photo of their child to whoever they want, I’m not here to get into the ethics of that part (although that’s a fascinating question in and of itself.) What’s interesting is that while the online picture taker is still the owner and officially holds the copyright, the legalese around it is pretty wooly and regardless, the pictures can technically be taken by anyone.
Ownership also mean responsibility. Responsibility, that is, for the impact of that image and potentially its use. It’s not so long ago bands were being taken to court for the perceived impact of their songs on the mental wellbeing of listeners. https://en.wikipedia.org/wiki/Better_by_You,_Better_than_Me It’s hard to imagine that now. Regardless of the merits of metal and mindset, it does raise the question, if ownership isn’t clear, is anyone responsible?
The case of the Hermes bag picture could well go down in history as a determinant for how we see things we own in the future. If you consider a photo of something you’ve created, something you’ve been part of delivering, or even just of yourself — what happens when that picture gets put online or a screenshot is taken and sold? Who has the rights to share it, sell it, or even have it in their possession? Hermes thinks it owns these pictures as it manufactured the physical bags (side note: apparently their bags sell for up to $500,000 — cue my mind blown) but Rothschild thinks his project falls within free speech saying ‘“My lawyers… put it well when they said that the First Amendment gives me the right to make and sell art that depicts Birkin bags, just as it gave Andy Warhol the right to make and sell art depicting Campbell’s soup cans.”’
We’ve been through this kind of argument with art, music, and writing many times before. Settled through questions like — who came up with the original idea? Who is the original author or artist? Traditionally ownership in this case has fallen to the artist, that’s certainly what’s we’ve decided with artwork in the past. But in this new web 3 world there are more complex implications, particularly around how these images of you could be used. What about photos of you being used by someone else as their avatar when they purchase or interact with other people in a virtual environment? Where does the line between what you own to do with your identity begin and end?
So, let’s play this out. First, let’s say Rothschild wins the ownership rights. What does that mean? Does that mean anyone who takes a photo of anything then owns that image. What if someone did a pixel-rendered picture base on you and then sold it for $200,000? Do you own it? Or do they own it?
Now let’s play it out the other way, what if Hermes ends up owning the image of their bag created by an artist? How far will its reach go in terms of what gets shared, where, and how? What are the implications of having a corporate own every representation of something that they’ve done? You could argue that a bag is probably owned by its original inventor rather than a brand creating a version of it. In other words, Hermes’ bags are already versions rather than originals. (No disrespect Hermes.)
We’ve come to a point where this is no longer a simple subject. The components of the picture, ownership, rights, and who shares it are not held by a single person in a single instance.
This rounds back to my concerns about ensuring we’re thinking through multiple lenses about the end-users of the online worlds being created. We need people from backgrounds beyond technology to be part of considering the implications of what we’re building. Right now we’re talking about a bag, but it will quickly evolve to more than that. We need to be careful to ensure that the rights and what can be done with images of ourselves is thought through and thought through carefully.
I’m not saying I have the answers (sorry about that) I think that these are things we need to discuss and consider and I don’t think we have enough of the right people in the room. One of the many problems of working in technology and swimming in jargon-heavy conversations is it restricts access to the types of people and thinking that need to be part of the decision-making.
When things are driven by technology rather than end-user-first, products can end up at the very least un-user friendly and at worst damaging. Think of all the websites you’ve found frustrating to use or systems that take 15 steps rather than the one action which feels obvious. That happens when we think about technology first and develop things without fully considering what the person using it needs.
That’s a simple example of the issue which gets far more complicated when you start considering the virtual environments we’re heading too. And right now, there is a mass of personal information out on the wild web, everything from our private thoughts through to pictures we thought we only shared with one other. All those bad decisions and photos taken on nights-to-be-forgotten are embedded in code for anyone to find forevermore. There’s no better time to start talking ownership.
This case will be one to watch. I’ll keep you posted
Postscript: On chatting about this piece with a friend, a couple of further points worth noting — first, how do we ensure we fit the issue of potential cultural appropriation into this conversation? and second, technology needs to stop being treated as a separate solution or entity.
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