This whole copyright quagmire...... [Archive] - Large Format Photography Forum

Brian C. Miller

25-Jan-2012, 15:36

'The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court… should operate a small claims procedure for intellectual property claims under £5,000.'

Never mind tripod holes, just getting anywhere near another point could get you in trouble!

On one hand, this is nuts, but I think I see what the judge was doing. But even as I've been trying to paraphrase it, it's still nuts, but it isn't. What this is like is as if a concept has been patented, not an instance has been copyrighted.

So of course under patent law this is valid. But under strict copyright law, it's invalid. And to top it all off, it's something that someone can yank you into small claims court over it. Yech.

"Scenic Overlook"
"Photography Prohibited by Copyright"

Paul Ewins

25-Jan-2012, 15:43

That one dodens't surprise me at all. It was a fairly blatant case of copying that photographer's style: Company A asks to license Photographer B's work. Company A doesn't like the price so they get Photographer C to go out and produce something similar for less. So Company A has copied Photog B's work and Photog B has suffered a monetary loss as a result.

If Company A had instead found another (cheaper) photographer who already had a photo of a spot coloured London Bus on Westminster Bridge they would probably have been in the clear since no copying had occurred, even although the end result may have been identical.

The David La Chapelle vs Rhianna case is a similar thing, but involves copying the look of a photo in a music video. Again, that one is fairly blatant since David La Chapelle's style is utterly unique and completely artificial.

I really don't think any of us would have anything to worry about unless we are asked to create a substitute for another photographer's work using their style. It is the copying that matters, not the similarity of subject matter. I think it is still fine to shoot Yosemite in B&W.

ic-racer

25-Jan-2012, 15:52

This should not apply to photography. The images in question is a computer graphics concoction.

managing director Justin Fielder – who shot the image in August 2005 and then manipulated it using Photoshop

The two images are labeled "Photograph" but I have never seen a photograph from a camera looking anything like that. Those are both computer graphics images.
http://www.swanturton.com/multimedia/docs/Temple%20Island%20v%20New%20English%20photographs.pdf

Calling those images "photographs" is like calling the Starbucks logo a photograph of a woman.

Come to think of it, I have a photograph of a woman with long hair that I took in 1969 that looks very similar...guess its time to sue.

Leigh

25-Jan-2012, 15:56

Copyright means the right to copy. The second photo is clearly not a copy of the first.

The styles may be similar, but styles are not copyrightable. Perhaps UK law is different.

- Leigh

John Olsen

25-Jan-2012, 16:01

The second photographer manipulated a common image to resemble some one else's manipulation. I think he's caught, especially since it's in a commercial context, not art.

Mark Stahlke

25-Jan-2012, 16:04

I'm not sure the judge's decision would stand up under appeal in the US. The image could very well be considered a scène à faire.

SCENES A FAIRE UNDER COPYRIGHT LAW (http://www.ivanhoffman.com/scenes.html)

Leigh

25-Jan-2012, 16:11

SCENES A FAIRE UNDER COPYRIGHT LAW (http://www.ivanhoffman.com/scenes.html)
One sentence in that opinion expresses my opinion on the subject quite well:
"The Court went on to find that the later photographs were not virtually identical, finding differences in shadows, angles and other factors. "

- Leigh

ic-racer

25-Jan-2012, 16:11

The second photographer manipulated a common image to resemble some one else's manipulation. I think he's caught, especially since it's in a commercial context, not art.

We are calling them photographers? The images are created on a computer.

IanG

25-Jan-2012, 16:18

Copyright law means plagiarism is unlawful.

So rather than muddying the water this clarifies it in the UK at least.

Ian

Steve Smith

25-Jan-2012, 16:22

Perhaps UK law is different.

I didn't think it was. This seems more like a case of trademark infringement than copyright infringement.

Steve.

Brian C. Miller

25-Jan-2012, 16:44

We are calling them photographers? The images are created on a computer.

What is the essential difference between an image which has been selectively desaturated, and a B&W photo which has been selectively colored? The manipulation in both cases is minimal.

Brian Ellis

26-Jan-2012, 11:28

This should not apply to photography. The images in question is a computer graphics concoction.

The two images are labeled "Photograph" but I have never seen a photograph from a camera looking anything like that. Those are both computer graphics images.
http://www.swanturton.com/multimedia/docs/Temple%20Island%20v%20New%20English%20photographs.pdf

Calling those images "photographs" is like calling the Starbucks logo a photograph of a woman.

Come to think of it, I have a photograph of a woman with long hair that I took in 1969 that looks very similar...guess its time to sue.

I used to make images similar to that (i.e. one part colored, the rest black and white) pretty often in the old days with film and a fume room using Kami masking fluid to mask the part to be colored and coloring in a toner or by hand-coloring. It was actually a very common practice. I'm surprised you've never seen anything like that.

Kirk Gittings

26-Jan-2012, 11:36

I agree Brian. I haven't done it since I was an undergraduate, but fairly simple to do with hand coloring and masking fluid. I remember being given an assignment to do just such an image in Photo II at UNM 1970. I took a photo of a veteran's grave with a little American flag on it and just colored the flag. It took me just one evening.

paulr

26-Jan-2012, 21:30

That one dodens't surprise me at all. It was a fairly blatant case of copying that photographer's style: Company A asks to license Photographer B's work. Company A doesn't like the price so they get Photographer C to go out and produce something similar for less. So Company A has copied Photog B's work and Photog B has suffered a monetary loss as a result.

A design department that I worked for ran into this exact thing. They didn't like the price for an image that was in photographer A's portfolio, so they hired a young photographer to do something in a similar style. Our legal dept. put the kabosh on it. They said the images weren't similar enough on their own to ruffle any feathers, but the fact that we had ASKED photographer A for a quote, and then declined, made it likely that we'd lose copyright suit.

Makes me think of the oft-repeated mantra around here: better to ask forgiveness than ask permission.

Darin Boville

26-Jan-2012, 23:58

A design department that I worked for ran into this exact thing. They didn't like the price for an image that was in photographer A's portfolio, so they hired a young photographer to do something in a similar style. Our legal dept. put the kabosh on it. They said the images weren't similar enough on their own to ruffle any feathers, but the fact that we had ASKED photographer A for a quote, and then declined, made it likely that we'd lose copyright suit.

Makes me think of the oft-repeated mantra around here: better to ask forgiveness than ask permission.

That seems to be the key idea here that solves the riddle, the idea that the two sides were in contact before the second photo was made (and there seems to have been other cases between these two). Absent that chain of events I'm not sure this would make any sense at all.

--Darin

BetterSense

27-Jan-2012, 07:15

Darin Boville

27-Jan-2012, 09:52

domaz

27-Jan-2012, 12:35

Only programmers don't believe in copyright because it is in their self-interest not to. Nothing noble or principled about it. :)

--Darin

As a programmer myself I can say that I do believe in copyright but not software patents. If you are a software developer and being paid by a company it's very much in your self interest to believe in copyright. Piracy means you don't get paid. Software patents are a totally different matter and I don't believe in those at all for very different reasons.

Mike Anderson

27-Jan-2012, 12:43

As a programmer myself I can say that I do believe in copyright but not software patents. If you are a software developer and being paid by a company it's very much in your self interest to believe in copyright. Piracy means you don't get paid. Software patents are a totally different matter and I don't believe in those at all for very different reasons.

I agree completely. I think most programmers believe (out of self interest, among other things) copyrights good, software patents bad.

Sal Santamaura

27-Jan-2012, 23:25

I don't believe in copyright at all. It's nothing but protectionism...In my opinion, more protectionism would be a good thing, i.e. it would make better sense than what we've got now. :) However, that debate brings us into the realm of politics, so discussion of it is prohibited here.

Jay DeFehr

28-Jan-2012, 00:23

I don't believe in copyright at all. It's nothing but protectionism. I'm sure that will ruffle many feathers here since photographers happen to be beneficiaries (sometimes) of this particular type of protectionism, but that doesn't make it right.

I'm with you, BetterSense,

Copyright laws are vestiges of another time, and don't apply to the modern world. That copyright laws benefit, or might benefit an individual or an industry is irrelevant. Copyright laws were created to benefit society as a whole by "Encouraging men of learning to write useful books". We don't need to privilege the activities copyright laws seek to protect, and society as a whole is more harmed by copyright laws than it benefits by them. We need to change the way we think about creativity and ownership and say goodbye to ill-conceived concepts of Intellectual Property. We need to think bigger, and better.

Jay DeFehr

28-Jan-2012, 00:27

In my opinion, more protectionism would be a good thing, i.e. it would make better sense than what we've got now. :) However, that debate brings us into the realm of politics, so discussion of it is prohibited here.

Protectionism is political, but copyright is not? That's an interesting perspective!

30-Jan-2012, 09:12

We need to change the way we think about creativity and ownership and say goodbye to ill-conceived concepts of Intellectual Property. We need to think bigger, and better.

We certainly do, but it would be unlikely to happen all at once and boldly. I'm not ready to do away with copyright, but it needs radical change. It should be less restrictive for all media and drastically shorter not longer for new works after ___ date. The shortness should be based on an expected reasonable lifecycle suitable for the 21st century.

If a pro musician can't make his expected $ on a song in 20 years, he should be either produce more new stuff or do it for fun. If a photographer loses copyright after 20 years, the ability to reproduce the image for sale super long term would be based on an appreciation for originality/authenticity rather than law, favoring analog reproduction rather than digital where a computer file would allow countless identical perfect copies to be made until WW3.

Software patents lock up building blocks of computing; sort of like re-patenting the nail, 2x4 and hammer. Little is new for ways of organizing and calculating data in a computer and it shouldn't receive a patent for that. The software merely takes advantages of better hardware, better Internet, etc.. to do things that were impractical or too costly before.

polyglot

30-Jan-2012, 20:07

I agree completely. I think most programmers believe (out of self interest, among other things) copyrights good, software patents bad.

As a programmer, I believe in very-short-term copyrights (5 years for software maybe - if you can't commercialise it in that time you don't deserve it and/or it's become irrelevant) and certainly not software patents. I am of course a fan of (and contributor to) free/open source. Copyrights that go for death-of-author plus 75 years (only if owned by a corporation, wtf?) are unarguably a chilling effect on innovation in any creative realm, be it photography or software.

You yanks with your WIPO, ACTA and money-in-politics are really buggering up the IP landscape for the rest of us.

snip

Software patents lock up building blocks of computing; sort of like re-patenting the nail, 2x4 and hammer. Little is new for ways of organizing and calculating data in a computer and it shouldn't receive a patent for that. The software merely takes advantages of better hardware, better Internet, etc.. to do things that were impractical or too costly before.

Actually there is much that is new and very clever in software but that doesn't mean it should be patentable. In fact, most of the best stuff is published in academic journals.

Of course most software patents are issued for old / well-known / obvious things but that's a side-effect of USPTO underfunding/incompetence, which is of course immediately and heavily taken advantage of.

Kirk Gittings

30-Jan-2012, 20:14

Copyrights that go for death-of-author plus 75 years (only if owned by a corporation, wtf?) are unarguably a chilling effect on innovation in any creative realm, be it photography or software.

My son who is a high end web developer (http://modeset.com/) and complains about this too. But why wouldn't this force you to be more creative and reinvent the wheel? I'm seriously asking.

Mike Anderson

30-Jan-2012, 21:30

As a programmer, I believe in very-short-term copyrights (5 years for software maybe - if you can't commercialise it in that time you don't deserve it and/or it's become irrelevant) and certainly not software patents.
On the other hand, if software works go public domain after 5 years that might induce software makers to make things that obsolesce quickly. They tend to do that now but a 5 year copyright term could make it an existential priority.

polyglot

30-Jan-2012, 23:32

My son who is a high end web developer (http://modeset.com/) and complains about this too. But why wouldn't this force you to be more creative and reinvent the wheel? I'm seriously asking.

Why the hell would I want to reinvent a wheel? There are perfectly good wheels available off the shelf and what I want to do is make racing cars. We buy commercially-produced film so that we don't have to hand-pour our own plates. Those who want to play with goo can while the rest of us get on being productive with making creative images instead.

Of course, there is a big group of open-source people reinventing the closed-source wheels - boring work but valuable. Sometimes they improve on it, sometimes they get it wrong. I prefer to create new things but I realise that I owe that opportunity to the free-software people who went before me and made their wheels available for free.

On the other hand, if software works go public domain after 5 years that might induce software makers to make things that obsolesce quickly. They tend to do that now but a 5 year copyright term could make it an existential priority.

Two answers to that: open standards and trade secrets. Standards and interoperability are hugely valuable to society as a whole because they promote competition and prevent arbitrary obsolescence. The other thing is that commercial software is generally published only as a binary and therefore its operation is a trade secret. You can keep a trade secret for as long as you like. Doesn't matter if copyright expired if you're the only one holding the source code! The flipside to relying on trade secrets is that if what your product does is so obvious that someone else can figure out how it works, you have no effective protection... which is as it should be. Anyone can make a bicycle, therefore many companies do so.

Paul Ewins

30-Jan-2012, 23:42

Copyrights that go for death-of-author plus 75 years (only if owned by a corporation, wtf?) are unarguably a chilling effect on innovation in any creative realm, be it photography or software.

I would say the exact opposite, remembering that most items that are copyrighted are essentially entertainment - i.e. books, music, tv and video. The world doesn't need more Mickey Mouse cartoons or covers of 60's music or Movie and TV reruns. Create something new. Innovate, don't copy.

Brian C. Miller

30-Jan-2012, 23:59

My son who is a high end web developer (http://modeset.com/) and complains about this too. But why wouldn't this force you to be more creative and reinvent the wheel? I'm seriously asking.

Simple: the wheel has been patented. Any other round device used for transportation or movement is an infringement of that patent. Any device moving in a circular motion for transportation or movement is also an infringement of that patent. Tread locomotion has also been patented. Leg-like locomotion has also been patented. Etc, etc. Seriously, there is a patent for swinging on a children's playground swing using a side-to-side motion.

Real case: the patent for web shopping carts is owned by a doctor down in Florida. All shopping cart software must pay fees to the aforementioned doctor. The doctor never developed any software, he just has a patent.

NPR's This American Life (http://www.thisamericanlife.org) ran a story called, When Patents Attack.

Fighting patents is very, very expensive. Once upon a time I worked as a programmer for a little company which connected mainframes to PCs and Unix workstations. A fellow who held a patent sued us for patent infringement. The company owner said, "OK, we'll pay you." The patent holder then decided to up the settlement fees. The business owner got PO-ed, and decided to fight. He spent millions fighting the patent, and sank the company into heavy debt. In the end, and after firing his first lawyers and getting the best patent lawyers in Seattle, he won, and the patent was tossed out on a technicality. However, the judge said that he had never seen so much prior art presented at a trial before.

The technicality was that the patent office had initially rejected the patent, and required the holder to refile the patent within a specific time period. The patent holder missed that deadline by six months, and the patent office granted the patent regardless of the missed deadline.

When a patent holder loses a patent, the holder must then pay back everybody that was hit for fees. That's the rules of the game.

I have read an estimate that about 1/3 of the patents are invalid. But it takes so much money to fight that companies normally roll over and pay.

Mike Anderson

31-Jan-2012, 00:50

...
Two answers to that: open standards and trade secrets. Standards and interoperability are hugely valuable to society as a whole because they promote competition and prevent arbitrary obsolescence. The other thing is that commercial software is generally published only as a binary and therefore its operation is a trade secret. You can keep a trade secret for as long as you like. Doesn't matter if copyright expired if you're the only one holding the source code! The flipside to relying on trade secrets is that if what your product does is so obvious that someone else can figure out how it works, you have no effective protection... which is as it should be. Anyone can make a bicycle, therefore many companies do so.

I don't understand. If the object code copyright has expired in 5 years, keeping the trade secret (source code) secret doesn't do much.

Steve Smith

31-Jan-2012, 01:14

The doctor never developed any software, he just has a patent.

And the best thing about a patent is that you only have to have the idea, you don't need to get the idea to work.

Steve.

Steve Smith

31-Jan-2012, 01:16

I don't understand. If the object code copyright has expired in 5 years, keeping the trade secret (source code) secret doesn't do much.

If the copyright has run out, that doesn't mean you have to give the source code to anyone who asks for it. You can still keep it to yourself.

Steve.

polyglot

31-Jan-2012, 02:56

Having the object code doesn't mean you can use it (you have it under a license that you agreed to, you didn't purchase it) and not having the source means you cannot use the program to compete against itself.

If you want to get yourself all angry sometime, google for "patent troll". IMHO most patent litigation (at least for software) is patent-trolling.

BetterSense

31-Jan-2012, 06:38

Having the object code doesn't mean you can use it (you have it under a license that you agreed to, you didn't purchase it) and not having the source means you cannot use the program to compete against itself.

I believe that it's only copyright that makes such a license possible, though.

rdenney

31-Jan-2012, 07:43

If you want to get yourself all angry sometime, google for "patent troll". IMHO most patent litigation (at least for software) is patent-trolling.

Well, maybe not "most". But I agree.

In other industries, patent applications have to show how the patented process is unique from prior art, but it also has to show its practical value. And it cannot be overly broad. In the software world, it just doesn't seem to be that way. There are many, many companies that patent obvious processes that are broadly defined, and then spend all their time looking for products that might infringe on their patent. Then, they sue. Trolls? More like robbers hiding in the forest, ambushing passersby and extorting money from them.

But the pendulum can swing too far the other way, effectively eliminating an incentive to create new technologies and approaches. That's what the founders had in mind when they established the first 17-year patent and 28-year copyright. For them, it provided balance--an opportunity for someone to benefit from bringing their own good idea to market, and then an orderly process for moving that art into the public domain. The terms have lengthened as a result of political influence (damn democracy!), but eliminating them altogether could have a range of unforeseen consequences.

I would favor laws and their interpretation providing that software be protected only by copyright (and considering that a copy is just that--the preponderance of the evidence suggests the infringer explicitly took the content from the infringed), and that patents for software are subject to same standards of uniqueness, narrowness, and demonstration of practical value as patents in other industries.

Rick "good friend of a very high-end software IP attorney" Denney