UK Court Says You Can Copyright The Basic Idea Of A Photograph
from the say-what-now? dept
We've talked a lot in the past about the "idea/expression dichotomy." This is an important concept in copyright law that says you can only copyright the specific expression, and not the idea. This is supposed to protect people from getting accused of copyright infringement for basically making something similar to what someone else made. Unfortunately, as we've been noting with dismay over the past few years, the idea that there's some bright line between "idea" and "expression" has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction. In the US, we've seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear homages to his photographs. The expression was entirely different, but the judge didn't think so, and Rihanna ended up having to pay up.Over in the UK, though, we have an even more ridiculous ruling, as pointed out on Boing Boing, where a judge has ruled that a photograph using a similar idea, but totally different composition is infringement. You can see the two photographs here:
I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.What troubles me here is that this seems to turn the judge into an art critic in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are "copied." Perhaps even more troubling is the following sentence:
Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.While he's right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly. The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on commonly used photographic elements. That's the problem. Either way, it's yet another example of copyright law being used to lock up culture.
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Filed Under: big ben, copyright, expression, idea, london bus, photograph, uk
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Hmmm, smells like...
I am just not seeing it...
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Re: Hmmm, smells like...
Onto the case itself; one thing a lot of commentators are missing on this is that the two photographs are causally linked; the defendant saw the claimant's photograph and said "I want something like that." He didn't just take a photograph of the same things, from a similar position (which there's an 1997 case on, involving an Oasis album cover, where the copyright claim was dismissed, despite taking a photo of a "set" prepared for the main photo), he knowingly and wilfully copied all the elements of the first work.
A possible analogy would be to taking characters out of one book and using them in another, maybe renaming them and changing some minor details, but keeping the basic facts and figures the same; the expression is different, but it is still an act of copying (and a "parody" or "criticism" defence would only apply if there was actual parody or criticism, rather than just copying in this case).
It's an odd ruling, and caught some people by surprise, but it isn't particularly outlandish. For a 21st century copyright case. In terms of common sense etc., it's a stupid ruling in many ways, but the judge is limited by the law.
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Re: Re: Hmmm, smells like...
He should have been able to recreate the photo using the exact same angle, lighting, composition, and photoshopping and STILL not be infringing because it is a new work, albeit derivative.
Of course, after the Rihanna bullshit here in the U.S., we don't have much of a leg to stand on either.
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Re: Re: Re: Hmmm, smells like...
There's copyright in the original photograph.
The defendant took that photograph and copied all the major elements of it (i.e. a substantial part of it) to make his photograph.
How is that not copyright infringement under current law?
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Re: Re: Re: Re: Hmmm, smells like...
I'm in the States, but isn't copyright just that? The right to copy (or not copy) a specific work?
If the guy made actual copies of the photo, like on a copy machine, I could see an actual infringement claim, but he didn't do that. He took his own photo. Elements in the photo shouldn't enter into it because then you're claiming what people see with their own eyes as part of infringement, and that's just ludicrous.
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Re: Re: Re: Re: Hmmm, smells like...
The defendant took that photograph and copied all the major elements of it (i.e. a substantial part of it) to make his photograph.
By that reasoning, nobody could ever take a photo that's substantially similar to someone else's photo, because the first photo is copyrighted.
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Re: Re: Re: Re: Hmmm, smells like...
The only similarity is the subject matter, location, and presentation (red on black/white background). Your presumption is absurd.
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Re: Hmmm, smells like...
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Make London Buses red!
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since he decided himself that the photographer and subject in focus (it's NOT THE SAME BUS in those photos) don't matter much, let's see how much/long they can pay for copyright violations in mug shots :)
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If one of those people/things/locations becomes famous imagine the money I can make suing others for taking pictures of those things. I took a vaguely similar picture first damn it, so I demand to be compensated for it! Say $1,000 per photo?
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If this decision is taken to its ultimate conclusion...
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Viewing this the wrong way ;) (semi-joking!)
>_>
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Re: Viewing this the wrong way ;) (semi-joking!)
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Re: Viewing this the wrong way ;) (semi-joking!)
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Re: Viewing this the wrong way ;) (semi-joking!)
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Re: Re: Viewing this the wrong way ;) (semi-joking!)
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Anyway... the main story is not exactly as it has been reported here. The company that got taken to court sell smoe sort of tea and they had the first picture on there box. They then decided they didn't want to pay the photographer any money so they had a similar shot taken and used that thinking they could get away with it. The judge decided that since they had expressly gone out and take a similar shot for this purpose then they were in breach... I'll see if I can dig out the article since someone else made a comment and explained it much better than me :)
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There is nothing original about either photo; each photog owns the copyright to his photo, neither of which is terribly original in concept or execution.
What a weird decision!
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So, old cronies and those who take advantage of the old cronies, one thing i dont wanna see is the former being replaced with latter
We'd all like to see a shake up no doubt, but i get the feeling so would some of those in power, maneuvering a seemingly impartial official on to a place of power. In that situation, how would we recognise the snake in the grass
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Hurry and copyright the portrait
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Re: Hurry and copyright the portrait
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Crowd Sourcing
I have a photo I need to submit.
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*copyrighted*
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Once they are gone then a generation of people who have grown up with ever changing technology will move into their places, hopefully with an at least partially instinctive understanding of the issues which really are so important in the modern era.
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Maybe a little bit, actually - each new generation seems to have a slightly higher tolerance for the speed and scale of social change. But it's still an incremental process - and the fact is that you and I and everyone else, no matter how savvy they think they are, will probably catch ourselves scoffing at something we don't understand at least a few times as we get older. Worse still, there will be other times where we do it and don't catch ourselves. So I personally refuse to take it as granted that my generation will be less prone to cluelessness - and instead focus on making sure I, personally, don't start mocking the kids on my damn lawn no matter how tempting it becomes...
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Interesting side note, I read about a dude with a missing eye, he was having a "replacement" eye designed with a built in recording (or was it broadcasting?) device; he was going to record a documentary with it for that ultra-real POV feel.
Ahh, found a link.
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The thing is that the people in power right now are those '60s youth. I see no reason to think today's youth will represent a revolutionary change when they enter politics either.
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(Though actually the people in power now are almost all older than that, especially the judges.)
Anyway, a more pertinent point is that copyright overreach leads to backlash. Total abolition of copyright becomes VERY likely.
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Inspector Spacetime
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This is amazing!
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I expect a sum of $150 per thought from you.
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Is that not how it works?
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But suddenly it's "imitation is the quickest way to litigation."
Fuck any type of copyright laws. DO NOT WANT!
No more governmentally imposed monopolies!
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After these rulings we're all left wondering exactly how to avoid infringement in future situations because the logic is fluid and arbitrary.
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This seems more like a patent issue to me than a copyright issue, but there would be too much prior art on this idea for it to be patented. I think this judge must be confusing the rights of patents with the rights of copyright and applying patent rights to a copyright. They are not the same.
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http://news.ycombinator.com/item?id=3508615
pbhjpbhj: "An analogue might be recreating Warhol's Campbell's Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I'd like to say that I think that piece actually would be a valid new work - and have quite a lot of substance - but nonetheless it would be derivative of the original beyond mere inspiration IMO."
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Disclaimer: I am a USian, and this is UK law about which I know nothing. But since I'm talking about what is right (in terms of the intent & purpose of copyright law in the US) rather than what is law, I think that doesn't matter as much as it might otherwise.
The bulk of the commentary seems to revolve around intent, and it seems to me that intent isn't relevant. Either the photo is a copy or it isn't -- and it's very clear from just looking that it's not. It's a different photo. The photographer didn't take the original, run it through a duplicator, and attach his name to it. He took a new photo that differs from the original.
Thus, in terms of copyright, there should be no violation. Yes, the purpose was unsavory, and if the original photographer had a reasonable contract then he could sure for contract violation, but it's not a copyright issue. To make it so distorts the purpose of copyright.
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But that's where the judge farked it up, imo. I'm also a USian, btw.
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Whats next, the basic "idea" for 12 bar blues?
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I'm pretty sure that in the age of digital photography you can't prove that you took a photo first. And for those of you that think a camera digitally signing a photo is proof you would be wrong. True proof of ownership died when people no longer hold the negatives....something that could be chemically dated.
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Tea Party Time
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I am beginning to think that the massive ratcheting up of copyright laws may in fact end up being the best thing for those of us that want to see copyright law reformed. The more restrictive it gets, the more likely that the average citizen is going to get inconvenienced or sued over it, the more likely there will be massive backlash from the general public (i.e. the backlash over SOPA/PIPA, and now ACTA). Hopefully the copyright maximalists don't figure this out in time, so maybe we can get some real copyright reform started.
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Twenty years? Try two or three. The fucking copyright crap is totally out of control and is all tilted in the favor of big content.
Take a look at ACTA, they can claim copyright infringement on the use of a sentence. This has gone too far.
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This is like drug prohibition -- it isn't going to work. Nobody respects the drug prohibition laws except the brainwashed minority. Elites have managed to keep them going for about 100 years though. How long will they manage to keep the nonfunctional copyright laws going? Good question, but the copyright laws are far more damaging and so will probably collapse sooner.
The question is how many governments will collapse before these laws collapse. Many governments are teetering for other reasons anyway, with no legitimacy for a dozen reasons.
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Scope Creep
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Photographers are the next target
http://www.techdirt.com/articles/20110625/01030814852/if-jay-maisels-photograph-is-original- artwork-then-so-is-pixelated-cover-kind-bloop.shtml#c68
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The fucktarded part of this whole mess is that the staturory damages are wholly out of line with reality. By all means, Maisel should be able to sue for damages, even treble damages with lawyer fees awarded. With total sales in the thousands and less than 10% of that attributable to the photo, a payment in mid hundreds would seem quite reasonable.
But no, we’ve allowed Mickey Mouse corporations to extend copyright assignments to last decades and sometimes centuries instead of 14 years. We’ve allowed them to set statutory damages at such an obscenely high level that whole business models are now built around suing for infringing registered works where the underlying works never had commercial value even approaching 1/10 that assigned by the inane copyright regime. We’ve allowed and encouraged industry cartels to band together to sue citizens for tens of thousands of dollars for listening to a $1 song without jumping through the right hoops.
We’ve allowed the corporatists to squeeze the life out of artists such that commercial productions will refuse to quote 20 words of song lyrics in a 20,000 word book without obtaining proper clearances. We’ve allowed whole genres of art to be destroyed, as rap artists and music mashers can no longer create without begging for permission first to modify music in the same way as has been done for millenniums. We’ve gone lifetimes without a single work of art entering the public domain, instead allowing 4th generation descendents to distort their great grandparents work by schilling great works to the Disney or the other high bidder such that these layabouts can profit off the work that belongs to all of society.
And the photogs supporting these laws are the most fucktarded of all, because if they don’t realize that we’re the next target for “permission based” copyright maximalists, then you haven’t been paying attention.
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glad i am not going to London
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The perfect storm is on the way....
"I took that shot of [insert athlete name here] winning first!"
"No. I took it 0.014 seconds before you did! You violated my copyright!"
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Dear UK court
I find you guilty based on this, and order you to pay me 1 million pound.
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You think that would protect you? "Your curvy smear of red paint infringes on my similar curvy smear of red paint. Please pay $650,000."
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My copyrights...
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Tourist Traps
*Innocent tourist snaps a photo*
*SWAT Team jumps out from behind the bushes!* "You are in violation of copyright! Please put down the camera and back away slowly! Don't make any sudden moves! Pay $10,000 or your camera is forfeit."
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Re: Tourist Traps
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Rankin's TV Program
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