Copyright protects a specific expression of an idea. In the case of a photograph, the expression is the photograph itself. In the case of computer programs, the expression is the code (not the functionality or looks of the program).
Creating a photograph that looks similar, is analogous to creating similar code.
What he seems to be saying is that seeing a picture of a red southbound routemaster bus in a desaturated view of Westminster bridge, as used to advertise one product, and then asking a photographer to create something similar to advertise your own product is copyright infringement.
Both images were used to advertise the same product. The defendant originally used the claimant's picture, but when it proved too expensive he commissioned another artist.
He didn't want to pay licence costs for it, got sued, THEN painted another Mona Lisa with a different hair color to get around said licencing fees. This ruling was about his intent.
His intent shouldn't matter for the purposes of copyright law; the only thing that matters is whether the first picture influenced the second. And that'd be hard for him to deny no matter what he did, since he initially used the first picture on his tea jars.
It's not misleading in the slightest to call it non-copied for the simple reason that it was not a copy, and that the copyright monopoly only covers direct copies, nothing else.
The copyright monopoly also covers derivative works. Both Swedish and American copyright laws treat derivative works as separate cases from copies.
I agree with you on the main issue, though - I don't see why the original picture needs protection from someone creating a similar-looking picture.
Yes, they used similar inspiration and similar techniques. But that is specifically not covered by the copyright monopoly, which has always been about protecting a specific expression of a creative idea, and never the idea itself.
Generally fan art is derivative and not to mention a trademark violation. That hasn't changed recently nor would I expect it to any time soon. Anybody creating such works really ought to have an attorney on retainer as it's generally a matter of time before one is going to get a cease and desist letter.
The first two sentences I agree with, but not the third. There are a lot of rightsholders who have realised that fan art doesn't hurt them and increases the popularity of their products, so they tolerate it, as long as it's non-commercial.
For example, J.K. Rowling has publicly given her blessing to Harry Potter fan fiction, as long as it's not commercial or obscene.
Most commercial franchises, such as comic book publishers and TV producers, tend to tolerate non-commercial fan fiction, without giving explicit permission to it, presumably so they have the option of taking it down if the need should arise.
Head over to fanfiction.net, and you'll see that the list of rightsholders who have asked for works to be taken down is very short, even though the site contains thousands of stories with characters from novels, comic books, TV series and computer games.
In short, it seems risk-free for a private person to put up fan fiction on the Internet. In practice the worst that can happen is that the rightsholder asks for the work to be taken down, and I'd hate for anyone to be discouraged because they think they risk getting sued.
It's nice to discuss with someone who argues intelligently in favour of intellectual property.
I agree that Toshiba, Samsung and so on copied a large part of the design from Apple. Some parts of it are just functional common sense, such as making them as thin as technology allows, and making the edges around the screen as thin as technology allows while still leaving enough room to hold the device without interfering with the touch screen, but other parts, such as the chrome back which barely peeks over the sides, are clearly copied from Apple.
I don't see why Apple should have a monopoly on those design elements, though, just because they were first. Competition is based on copying your competitor's best products and then trying to make them a little bit better or cheaper. Apple has had plenty of time to recoup their investment from researching that design; holding back their competition to allow Apple to earn even more money on it, is likely to make them less innovative, not more.
What I wanted to point is that the judge ruling is fair according to current laws : the defendant shot a close-looking photo on purpose to avoid a licensing fee for a copyrighted work.
What's wrong (or illegal) with that?
If the manufacturer of jars is too expensive, they switch to a cheaper one. If their transport company is too expensive, they switch to a cheaper one. Why can't they switch to a cheaper artist and ask him to do the same job?
As long as the new artist doesn't actually copy the old picture, I don't see why it should be illegal to produce a similar one. It takes as much work for the new artist as for the old one. The old artist already got paid for his work in the first lawsuit (which I think is fair).
Obviously New English Teas didn't want to pay the original author while maintaining the branding. You seem to think that it is ok ?
I do. The original artist deserves to get paid for his work with planning, taking and processing the photograph, but he doesn't deserve a stake in New English Tea's branding for his lifetime + 70 years. New English Tea wanted a similar picture because their customers were used with the old branding, not because it was particularly special or unique.
The picture looks very well-made and I'm sure the original artist put a lot of work into it, but so did the new artist. I don't think the composition and style are so unique that the second artist saved a lot of work by referring to the old picture. With art, as with other types of work, most of the effort is spent in implementing an idea, not in coming up with it.
But that only addresses the issue of photographs being copyrightable in themselves. It doesn't explain why another photograph can infringe by having similar motif, lighting and post-processing.
If you copy the idea, but the result turns out differently, then your creative work is in the details.
Ideas are rarely as important as people think. For example, two writers who start out with the same story idea usually produce very different stories. And the unskilled writer's story doesn't turn out any better because he copies the idea from a skilled writer.
But, yeah, if someone copies both the idea and the way of expressing it, then it's not very creative.
You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.
But the defendant's intention shouldn't make any difference. It should be obvious *from the photographs themselves* that they're derived from each other.
The law isn't there to force people to pay licensing fees. It's perfectly legitimate to avoid licensing fees by making your own photograph of the same subject. The law is only supposed to stop photographs which are so similar, they must be directly derived from each other.
The country doesn't need to respond to the legal demand. But if you're a business in a country which bends over to the USA, then it's not up to you. Since much of the data gathering and transfer is carried out in secret, those businesses need to be warned so they can encrypt their data and choose where, when and what to put online.
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.
Thanks for a well-written and informative post. I trust your assessment of the ruling, but I think it's doubtful you can call it a "copy". The defendant didn't scan or photograph the original photograph, nor did he try to recreate it as faithfully as possible; he merely tried to make his own version that was similar enough for his purposes (but with some differences). It may be a derivative work, but not a copy.
I understand that from a legal perspective, it makes a difference that he was inspired by the original when he made his own version, but I feel it should be pointed out that it doesn't make any difference that he was trying to avoid paying licensing fees. There's nothing wrong with taking your own, similar, photograph to avoid paying licensing fees, as long as the photograph itself isn't infringing. Just as there's nothing wrong with mixing your own soft drink to avoid paying money to The Coca Cola Company, or making your own spare parts to avoid buying expensive spare parts from your computer manufacturer.
Because the documents were illegally obtained, still classified, and not authorized for disclosure.
The documents were illegally leaked (because Bradley Manning was in the military, and therefore bound by US secrecy laws). The documents were not illegally obtained, since Wikileaks' staff is neither in the military, nor are they American citizens.
Assange continued anyway, with predictable results. Assange doesn't care who gets hurt by his activities.
And the US military doesn't care who gets hurt by keeping their own mistakes secret. For example, when they lied about how ineffective their drones were and how many civilians they killed.
You have to weigh the potential damage of exposing secrets, against the potential damage of keeping them secret.
Taliban courts are preparing to try and punish any Afghan informers identified in thousands of sensitive documents due for imminent release by the WikiLeaks whistleblower website.
But so far, it's only amounted to loose threats. There's no evidence they've actually been able to get at someone with the leaked information.
Besides, if the US government is so concerned about the safety of their Afghan informants, why don't they offer them asylum in the United States? Wouldn't that be a fair reward for assisting the US in their war efforts?
I wouldn't complain if Wikileaks published my work e-mails. If I discussed immoral or illegal things in them, I'd have to take responsibility for that, and explain that I never went through with them. I don't write about private matters in my work e-mail.
The article doesn't mention how John Young knows Wikileaks is selling secrets on the black market, nor does it provide a specific example. Until I read something a little more concrete, I'll assume the accusation is baseless.
Also, it doesn't make much sense to start a high-profile organisation that attracts the attention (and ire) of powerful governments, if you want to profit by selling secrets on the black market. You'd want to stay as low-profile as possible.
Perhaps only people who are a little full of themselves have the guts to go up against major governments, banks and corporations. A completely normal person wouldn't think the risk was worth it.
In all fairness, there are a lot of great American shows too. There's high quality news reporting like "CBS 60 Minutes", classic comedies like "Friends", intelligent drama like "West Wing", and so on.
But a person close to the situation tells me there’s a rumor going around among the lawyers that Apple spent $100 million just on its first set of claims against HTC.
Who knows if it’s true, but if so, Apple didn’t get a lot for its money.
So Slashdot is reporting on an article that reports on a blogger who claims someone told him there was a rumour going around about something (but he has no idea if it's true). Even if we use Dan Lyons' blog as the source, we're at least three steps away from someone who potentially knows anything.
Slashdot Mirror
You're quite eloquent and well-prepared. Not bad to write such a long answer the exact minute the story was posted.
Copyright protects a specific expression of an idea. In the case of a photograph, the expression is the photograph itself. In the case of computer programs, the expression is the code (not the functionality or looks of the program).
Creating a photograph that looks similar, is analogous to creating similar code.
What he seems to be saying is that seeing a picture of a red southbound routemaster bus in a desaturated view of Westminster bridge, as used to advertise one product, and then asking a photographer to create something similar to advertise your own product is copyright infringement.
Both images were used to advertise the same product. The defendant originally used the claimant's picture, but when it proved too expensive he commissioned another artist.
He didn't want to pay licence costs for it, got sued, THEN painted another Mona Lisa with a different hair color to get around said licencing fees. This ruling was about his intent.
His intent shouldn't matter for the purposes of copyright law; the only thing that matters is whether the first picture influenced the second. And that'd be hard for him to deny no matter what he did, since he initially used the first picture on his tea jars.
Sorry, I accidentally left some of the quoted text outside quote tags in the post above. Just disregard the last two paragraphs.
It's not misleading in the slightest to call it non-copied for the simple reason that it was not a copy, and that the copyright monopoly only covers direct copies, nothing else.
The copyright monopoly also covers derivative works. Both Swedish and American copyright laws treat derivative works as separate cases from copies.
I agree with you on the main issue, though - I don't see why the original picture needs protection from someone creating a similar-looking picture.
Yes, they used similar inspiration and similar techniques. But that is specifically not covered by the copyright monopoly, which has always been about protecting a specific expression of a creative idea, and never the idea itself.
For more, see this article on Falkvinge on Infopolicy.
Generally fan art is derivative and not to mention a trademark violation. That hasn't changed recently nor would I expect it to any time soon. Anybody creating such works really ought to have an attorney on retainer as it's generally a matter of time before one is going to get a cease and desist letter.
The first two sentences I agree with, but not the third. There are a lot of rightsholders who have realised that fan art doesn't hurt them and increases the popularity of their products, so they tolerate it, as long as it's non-commercial.
For example, J.K. Rowling has publicly given her blessing to Harry Potter fan fiction, as long as it's not commercial or obscene.
Most commercial franchises, such as comic book publishers and TV producers, tend to tolerate non-commercial fan fiction, without giving explicit permission to it, presumably so they have the option of taking it down if the need should arise.
Head over to fanfiction.net, and you'll see that the list of rightsholders who have asked for works to be taken down is very short, even though the site contains thousands of stories with characters from novels, comic books, TV series and computer games.
In short, it seems risk-free for a private person to put up fan fiction on the Internet. In practice the worst that can happen is that the rightsholder asks for the work to be taken down, and I'd hate for anyone to be discouraged because they think they risk getting sued.
It's nice to discuss with someone who argues intelligently in favour of intellectual property.
I agree that Toshiba, Samsung and so on copied a large part of the design from Apple. Some parts of it are just functional common sense, such as making them as thin as technology allows, and making the edges around the screen as thin as technology allows while still leaving enough room to hold the device without interfering with the touch screen, but other parts, such as the chrome back which barely peeks over the sides, are clearly copied from Apple.
I don't see why Apple should have a monopoly on those design elements, though, just because they were first. Competition is based on copying your competitor's best products and then trying to make them a little bit better or cheaper. Apple has had plenty of time to recoup their investment from researching that design; holding back their competition to allow Apple to earn even more money on it, is likely to make them less innovative, not more.
What I wanted to point is that the judge ruling is fair according to current laws : the defendant shot a close-looking photo on purpose to avoid a licensing fee for a copyrighted work.
What's wrong (or illegal) with that?
If the manufacturer of jars is too expensive, they switch to a cheaper one. If their transport company is too expensive, they switch to a cheaper one. Why can't they switch to a cheaper artist and ask him to do the same job?
As long as the new artist doesn't actually copy the old picture, I don't see why it should be illegal to produce a similar one. It takes as much work for the new artist as for the old one. The old artist already got paid for his work in the first lawsuit (which I think is fair).
Obviously New English Teas didn't want to pay the original author while maintaining the branding. You seem to think that it is ok ?
I do. The original artist deserves to get paid for his work with planning, taking and processing the photograph, but he doesn't deserve a stake in New English Tea's branding for his lifetime + 70 years. New English Tea wanted a similar picture because their customers were used with the old branding, not because it was particularly special or unique.
The picture looks very well-made and I'm sure the original artist put a lot of work into it, but so did the new artist. I don't think the composition and style are so unique that the second artist saved a lot of work by referring to the old picture. With art, as with other types of work, most of the effort is spent in implementing an idea, not in coming up with it.
But that only addresses the issue of photographs being copyrightable in themselves. It doesn't explain why another photograph can infringe by having similar motif, lighting and post-processing.
If you copy the idea, but the result turns out differently, then your creative work is in the details.
Ideas are rarely as important as people think. For example, two writers who start out with the same story idea usually produce very different stories. And the unskilled writer's story doesn't turn out any better because he copies the idea from a skilled writer.
But, yeah, if someone copies both the idea and the way of expressing it, then it's not very creative.
You didn't read TFA, did you? The Judge was able to determine that the image was clearly copied from that particular photograph precisely because that particular photograph was being used by the defendant without permission until a court ordered him to pay licensing fees. Only then was the new photograph was created.
Group think on Slashdot is reaching new levels of stupidity. This isn't a case of artistic freedom, this is about using someone else's art to sell tea and refusing to recognise their efforts.
But the defendant's intention shouldn't make any difference. It should be obvious *from the photographs themselves* that they're derived from each other.
The law isn't there to force people to pay licensing fees. It's perfectly legitimate to avoid licensing fees by making your own photograph of the same subject. The law is only supposed to stop photographs which are so similar, they must be directly derived from each other.
Well, that demand doesn't need to be answered.
The country doesn't need to respond to the legal demand. But if you're a business in a country which bends over to the USA, then it's not up to you. Since much of the data gathering and transfer is carried out in secret, those businesses need to be warned so they can encrypt their data and choose where, when and what to put online.
It doesn't have to be an exact copy to be a "copy" under copyright law.
It's a "derivative work", not a "copy". Copyright law treats "copies" and "derivative works" as two different cases.
But this is more akin to looking at someone's code, and then writing your own program where the code itself is very simlar.
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.
Thanks for a well-written and informative post. I trust your assessment of the ruling, but I think it's doubtful you can call it a "copy". The defendant didn't scan or photograph the original photograph, nor did he try to recreate it as faithfully as possible; he merely tried to make his own version that was similar enough for his purposes (but with some differences). It may be a derivative work, but not a copy.
I understand that from a legal perspective, it makes a difference that he was inspired by the original when he made his own version, but I feel it should be pointed out that it doesn't make any difference that he was trying to avoid paying licensing fees. There's nothing wrong with taking your own, similar, photograph to avoid paying licensing fees, as long as the photograph itself isn't infringing. Just as there's nothing wrong with mixing your own soft drink to avoid paying money to The Coca Cola Company, or making your own spare parts to avoid buying expensive spare parts from your computer manufacturer.
Because the documents were illegally obtained, still classified, and not authorized for disclosure.
The documents were illegally leaked (because Bradley Manning was in the military, and therefore bound by US secrecy laws). The documents were not illegally obtained, since Wikileaks' staff is neither in the military, nor are they American citizens.
Assange continued anyway, with predictable results. Assange doesn't care who gets hurt by his activities.
And the US military doesn't care who gets hurt by keeping their own mistakes secret. For example, when they lied about how ineffective their drones were and how many civilians they killed.
You have to weigh the potential damage of exposing secrets, against the potential damage of keeping them secret.
Taliban prepare to punish WikiLeaks Afghan informers
Taliban courts are preparing to try and punish any Afghan informers identified in thousands of sensitive documents due for imminent release by the WikiLeaks whistleblower website.
But so far, it's only amounted to loose threats. There's no evidence they've actually been able to get at someone with the leaked information.
Besides, if the US government is so concerned about the safety of their Afghan informants, why don't they offer them asylum in the United States? Wouldn't that be a fair reward for assisting the US in their war efforts?
I wouldn't complain if Wikileaks published my work e-mails. If I discussed immoral or illegal things in them, I'd have to take responsibility for that, and explain that I never went through with them. I don't write about private matters in my work e-mail.
The article doesn't mention how John Young knows Wikileaks is selling secrets on the black market, nor does it provide a specific example. Until I read something a little more concrete, I'll assume the accusation is baseless.
Also, it doesn't make much sense to start a high-profile organisation that attracts the attention (and ire) of powerful governments, if you want to profit by selling secrets on the black market. You'd want to stay as low-profile as possible.
Yes, I got that, but what does that have to do with the difference between encryption key and password?
True, they did.
Perhaps only people who are a little full of themselves have the guts to go up against major governments, banks and corporations. A completely normal person wouldn't think the risk was worth it.
In all fairness, there are a lot of great American shows too. There's high quality news reporting like "CBS 60 Minutes", classic comedies like "Friends", intelligent drama like "West Wing", and so on.
P.S. Tracing back to Dan Lyons' blog, we read:
But a person close to the situation tells me there’s a rumor going around among the lawyers that Apple spent $100 million just on its first set of claims against HTC.
Who knows if it’s true, but if so, Apple didn’t get a lot for its money.
So Slashdot is reporting on an article that reports on a blogger who claims someone told him there was a rumour going around about something (but he has no idea if it's true). Even if we use Dan Lyons' blog as the source, we're at least three steps away from someone who potentially knows anything.