Dunedin, New Zealand

Little blue penguins, also known by their Māori name korora, exit the sea at the Royal Albatross Centre, a wildlife sanctuary in Harington Point

Photograph: Alessandra Tarantino/AP

An Australian photographer has spoken of her pain and upset at what she has described as its unauthorised use of an image of her daughter as the basis for a pro-Russia mural on a bombed-out building in Mariupol.

Last week an Italian street artist, Ciro Cerullo, known as Jorit, announced he had completed the mural, which features a girl with the colours of the flag of the self-proclaimed Donetsk People’s Republic in her eyes, and behind her a falling bomb with the word “Nato”.

“They lied to us about Vietnam, they lied to us about Afghanistan, they lied to us about Iraq, and now I have proof: they are also lying to us about Donbas,” Jorit, who became popular for a mural of Diego Maradona in Naples, wrote on Instagram. “Be wary of those who would like to give us morals, their hands are covered in blood.”

Amid accusations of plagiarism and of spreading Kremlin disinformation, Jorit said in an interview with Giornale Radio that he had painted “a living little girl from Donbas who spent her first years in Mariupol surrounded by war”.

A number of users on Instagram and Twitter pointed out the resemblance to a photograph taken by Helen Whittle of her daughter, which appeared on a 2018 cover of the Australian photography magazine Capture.

“I have been made aware that this photo of mine, taken in 2018, has been used to create a mural in Mariupol, Ukraine,” Whittle said in a statement released via social media. “I was not contacted by the artist and do not give permission for this image to be used. My thoughts and opinions are in no way aligned with those of the artist involved.”

Jorit later said he had come across the photo by searching on Google for “pigtails” and he had redrawn “the shirt and the pigtails, adapting them to the shapes and lights of the face”.

He said his mural had used “the composition and elements of this Australian girl […] And so what?”

Reached by the Italian website Fanpage, Whittle said “it was distressing and painful for me to see my image copied and used in this way”.

She said: “It seems that he [Jorit] finds inspiration by copying images found on the internet. I am sad and angry that an artist feels the need to copy someone else’s work without asking permission. And I am very saddened by the way my image, my daughter’s portrait, has been used.”

Whittle said she was consulting her lawyers.

Jorit, who made a mural of the Russian writer Fyodor Dostoevsky in Naples a few weeks after Russia’s full-scale invasion of Ukraine, has been accused of spreading Moscow’s propaganda about the war in Ukraine, with critics pointing out that bombs that killed hundreds of children in Mariupol were dropped by Russian forces, who were also accused of targeting a maternity hospital in the city.

Valigia Blu, an Italian non-profit independent factchecking and debunking website focusing on journalism, said that before the full-scale Russian invasion there was a mural dedicated to a Ukrainian girl from Mariupol, Milana Abdurashytova who in January 2015 was hit by a missile strike launched by pro-Russian separatist forces and lost her mother and a leg. “Three years later, to commemorate Milana Abdurashytova’s story, street artist Sasha Korban dedicated a mural to her on the facade of a building on Prospekt Myru. But after the occupation, the Russians covered it up,” the website said.

Mariupol was one of the first major cities to be encircled after the Russian invasion. Viewed as a key Kremlin objective, the city was the scene of a siege that the Red Cross called “apocalyptic”. Ukrainian authorities estimate that 22,000 residents of the city died during the fighting.

I could never pick a favourite shot, or a best one. This is actually a photograph that almost didn’t make it into my current exhibition, but I was looking at it while I was preparing for the opening and asked a few visitors what they thought. One of them, an elderly lady, said: “Is it a greeting, or is it parting?” The more she looked at the picture the more she thought it didn’t show some casual separation – someone going away for the weekend – it seemed to be more than that. Another woman said: “It’s ageless love, basically, isn’t it? Ageless love is what’s there.” I wondered myself if the two couples were part of the same family, and if it was the women who were going away; they’re the ones with the bags. There’s a lot of ambiguity.

I have a camera with me all the time. When I made this picture, in around 2017, I’d been teaching in Colwyn Bay and was at the train station on my way home. It was evening, and the camera was in my hand as I waited on the platform. As the train came in, rather than just jumping on, I was still paying attention to what was happening nearby. I wandered around and took a few pictures, trying to be invisible, and then carried on once I was on board, photographing landscapes out the window.

When I first attempted candid work, I’d try to be as fast as I could and avoid being noticed, but 99 times out of 100 I’d fail. You get one bad look and the whole picture’s spoiled. I used to be really good at table tennis when I was young, which involves always being on the move, going this way and that – it’s very physical and fast. I started using a similar technique with my candid photography. You can’t do it methodically, it’s almost like a dance; and when you’re really in the flow, you kind of forget what you’re doing, you’re almost floating. Later, you look at what you’ve done and maybe that magic picture is there – it’s always a surprise. If I could pre-visualise the image, it would be pointless doing it. It’s the fact it’s a surprise that’s important.

There are other details that I like, such as the fact the woman in the foreground has gone up on her tiptoes for the kiss, and the way the man’s fingers are pressing into her sides, and hers are pressing into his cheeks. Then there’s the woman with the banana who’s creeping into the left of the frame. She looks as if she’s in her own little world, having a private laugh about something. And I like the repeating colours, the yellow and turquoise and red.

The photo is from a series called Snatch out of time. I got that phrase from Patrick Kavanagh’s poem The Hospital, which he wrote having undergone treatment at St James’s Hospital in Dublin. It’s such a positive poem, nevertheless – in the last two lines, he says: “For we must record love’s mystery without claptrap, / Snatch out of time the passionate transitory.” What’s more photographic than that? Because you’re not just trying to capture a moment when you take a photograph, you’ve got to feel it as well. It’s got to be something meaningful to you, something that’s passionate and part of you. And yet we know we’ve got to do it just like that, because life is transitory.

Because it was taken in Wales, I gave this picture a Welsh title: “Ta-ta rŵan” – goodbye, now. Sometimes the title can seem part of the picture. My wife’s friend, who died recently, came up with some great titles for my photographs. There’s a portrait in the show which might have made for a more obvious best shot, showing a man and woman standing against a car with their son inside, looking out. She called it “Their pride and joy”. The title could have referred to the boy, the car or even the woman’s breasts – she’s quite buxom. I’m told that lady has also died, but she lives on in the picture. I look at all these people and still feel I’m in their debt.

Tom Wood’s CV

Born: County Mayo, Ireland, 1951.

Studied: Fine Art at Leicester Polytechnic, 1973-76.

Influences: A film studies course at Leicester Poly covered mainstream, European art and avant garde cinema as well as extensive viewing of experimental film, with different films arriving each week from the London Film-makers’ Co-op (now Lux).

High point: “The current 50-year retrospective at the Walker Art Gallery, Liverpool, returning my photographic work to the people of Merseyside.”

Low point: “Twice being shortlisted but missing out on major awards (Paul Hamlyn award and the Arts Foundation Fellowship), which would have enabled me to return to Ireland and photograph there full-time for three years.”

Top tip: “Carry your camera always, make pictures casually and for fun, whatever the subject. For me the subject is where I happen to be, in a field of cattle in the evening, looking out of a train window, my friend Roger’s 70th birthday get-together, a grandchild, the local agricultural show. It’s a great way to get out of yourself!”

Instagram has beaten a class of photographers in a lawsuit that claimed the Meta-owned platform contributes to copyright infringement by letting outside websites embed images.

In 2021, photographers Alexis Hunley and Matthew Brauer filed a class action lawsuit against Instagram in federal court.

The lawsuit came about after Buzzfeed embedded Hunley’s copyrighted photograph of a protester during the Black Lives Matter protests of 2020.

Similarly, Time had embedded Brauer’s 2016 Instagram post showing his copyrighted photo of presidential candidate and former U.S. Secretary of State Hillary Clinton. According to the photographers, neither Buzzfeed nor Time sought their permission.

In the ensuing lawsuit, Hunley and Brauer claimed that Instagram abused their copyright by allowing news outlets like Time and Buzzfeed to embed the photos that they shared to their profiles.

The pair alleged that Instagram had never asked third parties to obtain a license to embed their copyrighted photos and videos.

Therefore, the platform is liable for secondary infringement when third-party sites use Instagram’s embedding tool to display their photos and videos.

A California federal judge initially dismissed Hunley’s and Brauer’s lawsuit, ruling that online publishers don’t infringe copyright by embedding Instagram images. He stressed that news outlets neither displayed a copy of the images nor stored them when embedding Instagram posts.

Nonetheless, the photographers appealed the dismissal and sought to revive the case with the 9th U.S. Circuit Court of Appeals.

Instagram Let Off The Hook

However, Instagram once again dodged the photographers’ claims on appeal. On Monday, a three-judge panel at the 9th U.S. Circuit Court of Appeals said the platform was not liable for copyright infringement — because when a photo or video is embedded, no copy is made of the underlying content.

According to Gizmodo, the panel’s decision document delves directly into the nature of HTML embeds. The hypertext code does not actually contain the images but essentially, an address for where the photos are stored while allowing the embed to display the file. The browser follows the HTML instructions handled through the embed link.

Therefore, BuzzFeed and Time did not “display a copy” of the photographers’ work since neither publication stored a copy.

“The embedding website does not store a copy of the underlying image. Rather, embedding allows multiple websites to incorporate content stored on a single server simultaneously,” the decision reads.

Not Over Yet

While Instagram appears to be left off the hook for now, Reuters reports that the photographers’ case against the social media platform may not be over just yet.

Hunley and Brauer can petition the Ninth Circuit for a rehearing en banc. En banc panels in this circuit consist of 11 randomly-selected judges rather than the entire appellate court.

In their decision on Monday, the three-judge panel also noted that Hunley and Brauer had raised “serious and well-argued” policy concerns about copyright holders’ ability to control and profit from their work.

After a concerted effort by the American Society of Media Photographers (ASMP) and the National Press Photographer’s Association (NPPA), Instagram added a new option in 2021 that enables users to prevent others from embedding content they post to Instagram.

Image credits: Header photo licensed via Depositphotos.