Who owns the copyright on the landscape?

[John Kasaian]

Bizarre question, I know but here goes:

Say on a cloudless day Photographer "A" sets up a tripod at a popular tourist vista and takes a photograph of Mt. Zelda using "sunny 16" with Ilford fp-4+ using no camera movements and a ubiquitous 300mm dagor. The contact print done with absolutely no manipulation, dodging or burning or spotting turns out very satisfactory and is copyrighted.

Late that same day, same conditions, same materials---everything the same, Photographer B comes along, sets his tripod down in the same location(lets say it's a Kodak identified "Photo-Op"---used by thousands of digi users since thats Kodak's forte these days) anyway Photographer B takes an identical photograph. The print is identical and a copyright is applied for as well.

These Photographers know nothing of each other's photographs.

"B" sells the photo for the cover of Outdoors magazine for $$$

"A" sees the cover and gets his/her shorts in a knot.

What happens?

Or

Illustrator "C" whips up a great image of the Grizzly Giant redwood in a snowstorm with photoshop and publishes it as a copyrighted poster.

The Winter before, Photog "D" hikes in during a snowstorm and takes an identical looking photo and publishes it as a set of copyrighted notecards.

Who really owns the rights to the images in question? Can a capricious record of natural light in the wilderness in fact, be owned? If so, by what Authority? Is it moral?

After a long. boring drive home from San Rafael I was musing on this very question to help stay alert---now that I'm home and rested I was wondering what you experts have to say.

Cheers!

[clay harmon]

Local pro I know had a situation where he had a particular shot in his portfolio book that a potential client liked. They made an offer he considered too small, countered, and they said 'no thanks' Later he sees the same image in an advert for this 'client'. Apparently, they just went out and duplicated the shot using somebody who was cheaper. He sued, and won. The reason was 1) that he had copyrighted his image, and 2) the image was unique enough that it was clear that this was a blatant attempt to do an end-run around him.

So my guess is that whoever filed their copyright first would have a leg up, but the fact that it sounds like you are talking about a very ordinary, not terribly unique landscape photograph from a popular well-known area would make the case pretty hard to pursue because of the lack of originality being displayed by both photographers.

[Witold Grabiec]

If it can proven that one had no knowledge of other's work, then both can claim rights to their own image. This case, as described by John, has nothing to do with an attempt to duplicate a known image, it's rather a case of a pure coincidence backed by an amlost unrealistic probability.

[robc]

1. later that day means the sun would have moved so lighting would be different.
i.e. images are not identical.

2. A hasn't published so he's going to have to explain how come B was in posession of his work.

3. If B can prove he made the image himself that really leaves A up a creek without a paddle.

4. Just look at all those images that all those photogrpahers have taken of national parks and are trying to sell. Now who's going to try and sue who.

[David A. Goldfarb]

More realistic situation--you've got 20 photojournalists crunched in cheek-by-jowl at a press conference or sporting event snapping away, some with their lenses inches away from each other (was that a Canon or a Nikon ad that showed a row of cameras mounted side-by-side with big lenses all pointed at an Olympic finish line?). You can look in different papers the next morning, and you might find shots by different photographers that are almost identical. There doesn't seem to be a copyright problem in this situation, so I don't see why there should be in the landscape situation.

[Kevin M Bourque]

Isn't there a photographer who deliberately tried to recreate some of Ansel Adams photos? I think he takes great pains to indicate that they're copies, though.

[Louie Powell]

John -

"Copyright" is the ability to claim ownership of the image. There is no automatic enforcement of copyright.

In your example, if A has asserted copyright on his image, he is entitled (but not obligated) to challenge B in court. It would be A's responsibility to prove to the judge and/or jury that B was aware of A's image and intentionally attempted to make a copy. At the same time, B would have to prove that he was not aware of A's image, and that he was not attempting to make a copy of A's image.

In the end, only the lawyers are sure to win.

[Mark Sawyer]

I've been thinking of rephotographing some of Mark Klett's rephotographic surveys of earlier photographers' images. If someone copies me, I'll sue their a** off...

[Brian Sims]

Just a clarification (and I'm not an attorney): one does not apply for a copyright. You copyright something with three things--the copyright symbol, a date, and a name. This is a heads-up to the rest of the world that if someone "steals" that work the copyright holder can seek compensation in court. The copyright holder has to then prove that they are the owner, that the work is innovative enough that someone could not reasonably be expected to repeat the work on their own, and, if the first two conditions are met, they are the first one to create the work. In the case of a patent, these three conditions must be proven as part of the application. I think there is a different burden of proof for violating a patent.

So, if you're out with your drinking buddies late at night and you make-up some cheesy limerick and in your cloudy state of mind you decide to write it down and copyright it don't count on it for your retirement. Copyrighting most photographs only makes sense to protect against outright copying your actual shot--a riskier proposition in the digital age. Re-shooting your image could only be copyright infringment if the original shot is unique and you can prove the thief was in a position to see your original image.

[David G. Gagnon]

While far from being an expert, I say use Vivarin to stay awake next time. :-)

DG