Is this image really a portrait? Controversy and the Olive Cotton Award

With the selection of Justine Varga’s entry in this year’s Olive Cotton Award for Photographic Portraiture, one thing is certain, it has gotten a lot of people talking about photography again – questioning the meaning of portraiture and what is a photograph. In 2017, the judge of the award was Dr Shaune Lakin, Senior Curator Photography at the National Gallery of Australia.

I remember watching an episode of Mad Men with Don Draper and his colleagues debating the lunacy of David Ogilvy’s now legendary VW Lemon advertisement. Draper concluded with words to the effect, “No matter what anyone hear thinks, we have all sat here debating this ad for 45 minutes. When is the last time an ad in the paper did that”.

Dr Lakin’s selection of Justine Varga’s entry has done its job. It has caused a great many people to stop and think about photography. To question its values, its methods, and the photographers’ intent. The last person to achieve something similar was Bill Henson with the Roslyn Oxley exhibition and the controversy that surrounded his work. But in that instance, it was not his methods or his aesthetic but the moral code that caused the outcry.

$20,000 prize for ‘photo’ of scratches and spit

Scraping away the surface of the discussion, a series of deeper questions emerge. Who is the legal author, the creator, and who owns copyright? Ms Varga, her grandmother, or the lab technician employed to print the image? The choice of judge. What responsibility does society place on a person or persons anointed to select a winner, and what qualifications are appropriate to the task. In this instance a $20,000 prize. A substantial windfall, but small-fry compared with some other prize monies.

While dedicated photographers appear universally aghast, it is interesting to note the academic fraternity are celebrating. They decry the controversy that surrounds their friends and see the decision as fair and well deserved. Therein lies the gulf between the broader photographic community and those that see themselves as practitioners of fine art photo media – the intellectual elite.

The question arises, is a person like Dr Lakin really qualified to adjudicate on what is a portrait and what is a photograph. He is after all an academic who made his career posturing a theoretical perspective in a field he has made no physical contribution.

At this point, I will state that I do not believe the winning entry is either a photograph or a portrait. Interpreting the definition of a portrait may be less clear cut. But draw on a sheet of photographic film does not a photograph make.

Who is the true creator?

Moving on from the essence of the image itself, I believe there is a very real concern that Ms Varga has misappropriated her grandmother’s copyright in a work the old lady reportedly created, at Ms Varga behest, using pens, crayon, and saliva on a sheet of plastic film.

Varga’s grandmother, from all account created the work at the kitchen table when she scrawled on the plastic surface with pens and her spit. To my understanding of the law, the grandmother is the rightful author and copyright owner of the work. Under the circumstances, as they have been reported, it is reasonable to believe Ms Varga's grandmother did not enter her work in the competition. We can however, presume Ms Varga entered the work on her own behalf and claimed to have created it herself. I would suggest the entry is invalid. Any talk of a “collaboration” is after the fact and technically invalid.

And what is Ms Varga’s actual role in the creation. We have no camera involved, so no shutter to push. Did she process the film herself or get it done at a lab? Did she print the piece that was submitted to the gallery? At what point did she physically contribute to the process? Or was it only an intellectual process? I don’t know the facts.

A reproduction, not a creation

What I do know is the act of reproducing a work, in whatever form, does not in itself constitute its creation and does not entitle the person making the reproduction to claim copyright over the work. In just the same way that a person who prints a photographer’s negative in the darkroom cannot claim to have created the work and own the copyright, Richard Princes' contentious misappropriations notwithstanding.

Nor does Ms Varga's apparent directions given to her grandmother or the provision of the materials used by the grandmother to create the work entitle Ms Varga to own the image that resulted. Any collaboration was verbal it seems, not physical. By way of example, it is my understanding that if I give a child a smartphone and show them how to take a photo and even suggest what the child could photograph, I am not the creator, the child is. I cannot legally claim ownership of the child’s work simply because I provided the means and guidance. And definitely not just because I am the child’s father. If I place the resulting photo on social media and it goes viral, I can manage the image on behalf of the child and negotiate fees for its use, as their legal guardian. But the money belongs to the artist, in my example, the child, not me, the child’s enthusiastic dad.

Personally, I can't accept a person’s scrawls on a piece of film, as something other than a drawing, in the same way I do not accept David Hockney’s drawings on his iPad as a photograph. I'm sure Mr Hockney would agree with me.

And now that silver halides have been superseded by digital technology, can I draw, smear, scrawl, or whatever on a sheet of fine art Hahnemühle Photo Rag Baryta paper and call it a photographic selfie, simply on the basis it is the material my studio uses to print its photographs? I think it would be a long bow to draw.

Whatever lines Ms Varga and Dr Lakin have sought to challenge, one thing is clear, the winning entry is almost certainly not the work of Ms Varga, but that of her aged and vulnerable grandmother.

About North Sullivan

North Sullivan photographed the original Qantas Choir on the Great Wall of China, has produced more international campaigns for Australian tourism than any other photographer, founded the Australian Photographers’ Collection, was a founding member and past president of the Association of Australian Commercial and Media Photographers (ACMP), and in 2008 judged the Moran Photographic Prize – the first single judge of a major photographic competition in recent time. He also owns one of the largest portrait studios in Australia, leading the market in creative magazine style fashion portraiture.

In 2003, his legal team set precedent in the Federal Court of Australia in the landmark copyright case, FNH vs Sullivan.