Essentially, the fewer the number of creative choices made by the camera owner, the weaker the argument for copyright.
In the case of clips, you are deciding where to put the camera; the camera does literally everything else, including deciding if and when to take the pictures. Depending on how much effort was put into the framing when the camera was set up, there **might** be enough to support copyright, but it's going to depend on the specific context.
In other words, you might have copyright if you used the live view on the phone to adjust the camera when placing it, but you might not if you just turn it on and put it down in the general area you want.
And, yes, that's an absurd result. That's what happens sometimes when laws that got their last major redesign when Xerox and 8-tracks were the new, cutting-edge threats to traditional content distribution get applied to radically different technologies.
I'm guessing it didn't hurt that I don't think you were all that wrong (and definitely not wrong on the major point of not everything needing copyright). ;)
The statute (17 USC 102) simply states that "copyright protection subsists...in original works of authorship fixed in any tangible medium of expression." It does not specify what is required to make a work "original."
Case law interpreting that statute established both that some creative input on the part of the author is required and that the threshold is very low. Feist Publications, v. Rural Telephone Service, 499 U.S. 340 (1991), is the leading case, but there are many, many others.
You're absolutely right about copyright not previenting others from taking similar pictures. Your picture of Andromeda is protected. The idea of taking a picture of Andromeda is not, even if it becomes as detailed an idea as "taking a picture of Andromeda on such-and-such a night, through an 8" Schmidt-Cassegrain."
And the same does apply to other subjects, including buildings. I used a photo I took looking up from under the center of the Eiffel Tower as an example, but there are many others.
In jurisprudence, the "edge cases" are often referred to as "problems of the penumbra." Lawyers, and especially academic ones, love the grey of the penumbra because, as my contracts prof said, "that's where the lawyering happens."
You are correct that there are few automated photo cases, which makes this camera even more of an uncertain area than it would be if we had more.
As far as your photos of Andromeda go, you're using your telescope as a lens. You've found the object (possibly with computer assist), placed it in the frame (probably fine-tuning any computer automation of the original placement), determined (via software) how many frames of what duration to take, and so on. The standard for originality needed to support copyright in photos is so low that there's no doubt in my mind that you've cleared it. (Your copyright in the finished image is "thin" - you can't stop others from independently taking virtually identical images - but it's there.)
I'm finishing a blog post that uses examples of Google Clips photos to show where the human operator is likely to be at least co-owner (with Google) of copyright in the images. If it's not considered spamming, I'll try to post the link when I'm done. (Probably another 45-60 minutes.)
The key difference in the Google Clips vs post-processing using software comparison, at least from what I can see, is that when you took the photo that is being post-processed, there's no doubt that you own the copyright in the original frames. With Clips, it's ownership/ownability of the original frames that's in doubt.
A second difference is that at least arguably you, and not the software, are making all the creative decisions in post-processing. The software is mechanistically carrying out your intent to (e.g.) stack frames to get the best color and lighting with the minimum motion blur.
I think the key there is "never came up." Quite a lot of possible copyright law issues simply never come up. Any uncertainty remains purely theoretical.
Whether this is best seen as a strength or weakness of copyright law is likely a matter of personal taste.
Technically, the post-production probably creates a work that's a derivative work of the original. It's entitled to copyright protection as such, but that doesn't technically address the question of copyright in the raw frames.
Putting the camera somewhere in the hope that an interesting image might result wasn't sufficient to lead to copyright in the Monkey Selfie case, so it's unclear that it would be sufficient with clips.
Under current law, you still have copyright in everything that you've created, even when you've chosen to release it under CC. The CC doesn't replace that copyright; it's a license for use that anyone can accept.
I know that sounds like pedantry (and it sort of is). But if we're going to talk about issues in copyight, the whole "copyright arises automatically at the instant of creation" thing should probably be on the list.
You're certainly not the only ones making the argument. However, while the Copyright Office Compendium is taken seriously by courts, it doesn't have the force of law. Courts can, and have, overridden Copyright Office decisions to not register works in the past. Courts have also overridden Copyright Office decisions to register works.
In the absence of any test of whether the copyright office is correct to hold that works created through a "mere mechanical process" are not copyrightable, I think the most that can be said is that it's unclear whether the AI is within US copyright law.
That's particularly true since nobody has applied that copyright office standard to this camera yet - it's possible that either the company that created the AI or the person setting up the camera will have provided sufficient "creative input" to bring at least some Clips photos under copyright. (I'm doing a post on my own blog with examples; OK to post link when I'm done?)
Also, it's important to note that other countries with different copyright laws might have different results, particularly (and as the Lexology article you cited points out) those countries that explicitly address computer-generated works in their statutes.
There are also laws which give people the right to control the commercial use of their own image. (aka "Right of Publicity") But it's a derivative of privacy law, is an area of state law rather than federal law, and varies considerably from state to state.
At least from the perspective of this lawyer, the freak-out isn't over the possibility that the photos are public domain. It's over the certainty that both the copyright ownership and copyright status of the photos taken with this camera are entirely uncertain.
Some, all, or none of the photos taken might be covered by copyright. In some, all, or no cases the copyright might be owned by the camera user. In some, all, or no cases the copyright might be owned by Google. In some, all, or no cases the copyright might be owned by both the camera owner and Google.
And the answers to those questions will very likely be diferent from one country to the next.
Copyright for pictures is not clearly assigned to whoever operated the camera. It's assigned to whoever made the artistic decisions about subject, framing, lighting, etc. Until now, that's basically been synonymous with "operated the camera."
The AI complicates that picture. With clips, the AI, and not the human, makes many of the artistic decisions. Clearly, the courts have yet to rule on what (if any) effect that will have, but it's very much an open issue.
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Re:
In the case of clips, you are deciding where to put the camera; the camera does literally everything else, including deciding if and when to take the pictures. Depending on how much effort was put into the framing when the camera was set up, there **might** be enough to support copyright, but it's going to depend on the specific context.
In other words, you might have copyright if you used the live view on the phone to adjust the camera when placing it, but you might not if you just turn it on and put it down in the general area you want.
And, yes, that's an absurd result. That's what happens sometimes when laws that got their last major redesign when Xerox and 8-tracks were the new, cutting-edge threats to traditional content distribution get applied to radically different technologies.
Re: Re: Re: I'd like to see that blog post
For the legal questions, it's probably not relevant. Which is good, because I doubt I'd understand the details very well.
Re: Re: Re: I'd like to see that blog post
I'm guessing it didn't hurt that I don't think you were all that wrong (and definitely not wrong on the major point of not everything needing copyright). ;)
Re: Re: Re: Re: Re: Re: Re:
Case law interpreting that statute established both that some creative input on the part of the author is required and that the threshold is very low. Feist Publications, v. Rural Telephone Service, 499 U.S. 340 (1991), is the leading case, but there are many, many others.
Re: I'd like to see that blog post
You're absolutely right about copyright not previenting others from taking similar pictures. Your picture of Andromeda is protected. The idea of taking a picture of Andromeda is not, even if it becomes as detailed an idea as "taking a picture of Andromeda on such-and-such a night, through an 8" Schmidt-Cassegrain."
And the same does apply to other subjects, including buildings. I used a photo I took looking up from under the center of the Eiffel Tower as an example, but there are many others.
Re: Re: Re: Removing RE:'s
You are correct that there are few automated photo cases, which makes this camera even more of an uncertain area than it would be if we had more.
As far as your photos of Andromeda go, you're using your telescope as a lens. You've found the object (possibly with computer assist), placed it in the frame (probably fine-tuning any computer automation of the original placement), determined (via software) how many frames of what duration to take, and so on. The standard for originality needed to support copyright in photos is so low that there's no doubt in my mind that you've cleared it. (Your copyright in the finished image is "thin" - you can't stop others from independently taking virtually identical images - but it's there.)
I'm finishing a blog post that uses examples of Google Clips photos to show where the human operator is likely to be at least co-owner (with Google) of copyright in the images. If it's not considered spamming, I'll try to post the link when I'm done. (Probably another 45-60 minutes.)
Re: Removing RE:'s :D
A second difference is that at least arguably you, and not the software, are making all the creative decisions in post-processing. The software is mechanistically carrying out your intent to (e.g.) stack frames to get the best color and lighting with the minimum motion blur.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Interesting on so many levels
Whether this is best seen as a strength or weakness of copyright law is likely a matter of personal taste.
Re: Re: Re: Re: Re: Re: Re: Interesting on so many levels
Re: Re: Re: Re: Re: Re:
Re: my copyrights
I know that sounds like pedantry (and it sort of is). But if we're going to talk about issues in copyight, the whole "copyright arises automatically at the instant of creation" thing should probably be on the list.
Re: Re: Re:
In the absence of any test of whether the copyright office is correct to hold that works created through a "mere mechanical process" are not copyrightable, I think the most that can be said is that it's unclear whether the AI is within US copyright law.
That's particularly true since nobody has applied that copyright office standard to this camera yet - it's possible that either the company that created the AI or the person setting up the camera will have provided sufficient "creative input" to bring at least some Clips photos under copyright. (I'm doing a post on my own blog with examples; OK to post link when I'm done?)
Also, it's important to note that other countries with different copyright laws might have different results, particularly (and as the Lexology article you cited points out) those countries that explicitly address computer-generated works in their statutes.
Re: Re:
Missing the main issue
Some, all, or none of the photos taken might be covered by copyright. In some, all, or no cases the copyright might be owned by the camera user. In some, all, or no cases the copyright might be owned by Google. In some, all, or no cases the copyright might be owned by both the camera owner and Google.
And the answers to those questions will very likely be diferent from one country to the next.
Re: Copyright ownership is clear
The AI complicates that picture. With clips, the AI, and not the human, makes many of the artistic decisions. Clearly, the courts have yet to rule on what (if any) effect that will have, but it's very much an open issue.
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