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Non-Copied Photo Is Ruled Copyright Infringement
An anonymous reader writes "A UK judge ruled that a photograph inspired by another photograph, but clearly different from it, infringes the original photo's copyright. The two photographs were shot in the same location, have the same subject, and use the same distinctive post-processing treatment. However, the angle and composition are different. From the article: '[The judge] said a difficult decision hinged on a "qualitative assessment of the reproduced elements." He defined Fielder's image a "photographic work," as distinct from a simply a photograph, in that "its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"
You know, having read the judge's reasoning, the headline and summary for this story are somewhat misleading. Yes, the photograph is "clearly different" in that it's not the exact same photograph, but it is clearly the same compositional idea, with the only practical difference between a difference in angle. Also, the second photo was intentionally made to avoid licensing fees from using the original.
The judge offered his logic behind the decision:
In other words, the original wasn't simply a photograph of something but a specifically processed piece of artwork, and the second piece attempts the exact same style and processing. The defendant commercially used the original without licensing it from the plaintiff and was sued by his company, and the second photo was only taken afterward to avoid paying the licensing fee, so the intent of the photo was specifically to copy the original and not borne of parallel-developed artistic expression.
So to say it's a "non-copied photo" is, in my opinion, wrong.
Howeverthe comments to the article also point out that this kind of shot is common: example, example, and example (note that these pictures have no dates provided). The article says alternative examples were in fact brought up in court, but the judge said they worked against the defense because they "served to emphasize how different ostensibly independent expressions of the same idea actually look." But I think they're all a close enough idea that the differences in angle and position don't serve to make them different enough, because the core idea of all the pictures is this specific London red bus in front of a monochrome Big Ben scene.
If it can be proved that there existed images like this before 2006, then the plaintiff shouldn't have won, but apparently, the examples given in court were undated.
"Sufferin' succotash."
I was thinking, I could see the point - if you nearly duplicated the angle, and used a similar treatment then yeah I think a photo could be close enough for infringement even if not the same.
But looking at the actual shot, the angle is totally different. The "treatment" is simply the (by now VASTLY overused) technique of leaving one object in color with the rest greyed out. Come on! That is in use everywhere as a common element, and I'll warrant it was even in use a fair amount before the original was taken. If ever there was a call for some kind of copyright "prior art" this is it.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
I bet big ben has been photographed from nearly every angle, under nearly every lighting condition and season. If this holds up, they should just issue tickets to anyone holding up a camera in front of it. That and station police at every location marked as a scenic wayside.
As unbelievably stupid as this ruling is, actually seeing the two images side-by-side adds an entirely new dimension to the sheer idiocy.
Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
10 years ago I said that the people pushing copyright everywhere would eventually wind up with copyright nowhere (i.e., with no copyright at all, due to a total loss of public support). This sort of crap does nothing to change that feeling.
So what you are saying, OCG, is that attempting to avoid a licencing fee by using a similar but different piece of "intellectual property" should be illegal?
Apple Computer agrees with you. As you know, they own flat glassy tablets with rounded corners. Don't try to avoid patent licencing by making similar but different tablets...
If you want news from today, you have to come back tomorrow.
http://www.ikea.com/us/en/catalog/products/40152586/ :)
Seems like a lot of artists should get some legal PO Box in the UK and a good UK lawyer. From patent trolling to art trolling?
As for the US Unix is Linux case, if only they had thought about UK law and followed the libel tourism trade
"When you go to the bookshop and look in the UNIX section, there's books on 'How to Programme UNIX' but when you go to the Linux section and look for 'How to Programme Linux' you're not gonna find it, because it doesn't exist""
Domestic spying is now "Benign Information Gathering"
This judge should be slapped.
"a specifically processed piece of artwork"
There's no such thing, he had no IP rights to the 'partial desaturation' technique, there is no special right to using that technique on some scenes. The judge here is trying to extend copyright to something it doesn't cover.
Photography can and always was at the fringe of what could be copyrighted, since its just a mechanical record of a fact. What the judge is claiming is that by applying a processing technique to that fact (which the guy had no special exclusive on), somehow creates something more. He then goes on to further extend that to say it covers a class of similar photographs.
i.e. if X is his copyright, copyright law says infringement = X
Judge is saying that X+Y creates a right (X+Y-0.1) Infringment (X+Y+0.1)
However the only thing that could extend photography copyright into a CLASS of similar images is the 'Y' and Y is zero, he has no special right to that technique and its a common technique, Y is zero.
In doing so he is devaluing that technique. It would be like I invented a super machine, patented it, and the first user claimed that applying that to it's purpose created copyright and he holds the copyright, ergo I cannot profit from my invention!!
So that technique is reduced by this decision.
This should and will be overturned on appeal. It's a garbage decision. The judge should be ashamed, idiot.
The common law rule for photographs is well known and straightforward, and is the same in the US and England. The three elements are 1) RENDITION (angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc); 2) TIMING; and 3) ARRANGEMENT (manipulation of the objects in the scene). None of these elements are necessary, nor are they individually sufficient. But this is your starting point. Nothing in that case is even remotely shocking from a legal theory perspective.
It's also worth noting that the touch stone of copyright is originality. It doesn't matter if your photograph looks exactly like another if you in fact had never seen that other photograph. But originality matters because copyright does extend to the "idea" of the work. In other words, when lawyers say that copyright covers "expression", they don't just mean the physical work, but the abstract, mental expression. The idea/expression dichotomy isn't about real versus conceptual. Both are conceptual. The different is fundamentally one of degree. If your mental expression derives from someone else's, and you fix that expression into a physical work, then you've violated the copyright. Right or wrong. This is very basic copyright law.
The reason why you don't see more of these photograph cases is that the claimant has to prove other elements, too, including similarity, actual copying (at a minimum showing that the violator had access to the other work), and originality in the claimant's work. This isn't very easy, especially for photographs lacking the third element of arrangement. Note that it appears to have had the first element (rendition) in spades.
So all the people who have taken photos of people "holding up" the Leaning Tower of Pisa are in for a world of hurt, huh?
Vote Quimby.
You don't get it (nor do many of the folks on this thread).
Let's put this into other terms. Let's say there is a movie (say the matrix for argument's sake), and someone watches the movie in Brazil and says, "hey, I like that movie, I'd like to license that movie and sell it in Brazil". Then they try to negotiate a license to distribute the movie, but can't come to an agreement on price. Then they get another studio to make a movie about a future world where machines take over and use people as batteries and trick them into not committing suicide by putting them in a virtual reality world. Probably won't get sued. However, if they make the same movie and put in bullet time special effects into the movie and the script has similar scene order and shot perspective and they end up calling the movie "The Tensor", many folks might think they crossed the line (maybe).
Why? it would have copied so many aspect of what made the Matrix, the Matrix, that it is considered a derivative work that lacks any transformativeness. If they, however, added some artistic element (say like make it a parody like space balls vs star wars), such that the work could be considered a new work under copyright law. Similarly, if the movie had the bullet time effects, but say was a movie about terminators, well, that's not the same movie. Or if the movie didn't have digital rain, or bullet time effects, but was say a movie with a plot like say dark city, that had a different effect say like moving buildings... etc...
It doesn't have to be an exact copy to be a "copy" under copyright law. Otherwize, someone could hire an army of people from some 3rd world country, give them the linux source code after the pre-processor and have each person memorize a function and type in another version from memory with variables converted to camelCase reverseHungarian and all the for loops turned into while loops and maybe some switch statements converted to if/else, run it through a pretty-printer and re-intepreted by a few code cleaning scripts and auto-doc tools to make some comments, and voila! a non GPL version of Linux could emerge! NOT! That work would also likley be inspired enough by linux that it wouldn't pass the test of being a new work (unless say they made it a microkernel instead of a megakernel which would be "new" or maybe "old" depending on your point of view)
I guess he just had a really inept defense because this judgment should not have ended up this way based on that image.
There is also the special case that he redid the photo just to avoid a licensing lawsuit...
It's the worst example of how not to do reverse engineering: infringe someone else's copyrights at first, then when you're called out on it, go out and reverse engineer and reimplement without a clean box...
It is highly unlikely that the defendant ever would have been in trouble, if he had not previously infringed fully on the copyright, by reproducing the original without permission.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
Now a freaking IDEA is protected under copyright? Great, open the gates for all the lawyers, and people wonder why we hate them so much. No need for a patent or trademark anymore, just claim you have the copyright on the whole process how you did something (which are clearly what patents are suppose to cover).
"its appearance is the product of deliberate choices and also deliberate manipulations by the author," and concluded that those aspects had been copied.'"
But those aspects are just how he did it. This is not a work of art, the same way as if I carper a table, the nailing and sawing are also "deliberate choices and also deliberate manipulations", but they cannot be copyrighted.
Fuck copyright. I never will abid to the stupid laws of copyright if I can get away with it. Sorry for all the artists that I will not give my money, but as long as the copyright laws are as such I will not recognize them. Maybe you (the artists) should get together and press to make them moral again, than I will concider to recognize them again.
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute
If you want examples of mostly black & white photographs with a touch of color, then you need to go back to the 19th century:
http://commons.wikimedia.org/wiki/File:Dubbelportr%C3%A4tt,_Sven_Alarik_Bergstr%C3%B6m_och_hans_hustru_Flore_Jos%C3%A9phine_Constance,_f._Pontus_-_Nordiska_Museet_-_NMA.0052773_1.jpg
The precedent here is that all (not very creative) artists who emulate someone (in awe or poor taste) have done something illegal. This is wrong.
Society will punish these artists "socially" (=bad reputation) as we have always done, and not through legal action.
Good taste and not lawsuits should dictate our behaviour.
People pay millions for "the original" for the right to say "but this is the original", which makes us marvel at the work, study the details aso. While anyone can get a copy online or at Ikea..
How will this precedent fare with stock photography, for instance? Or Disney's fairy tales that are clearly inspired by Old world tales?
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