'What's the Point of Even Having Copyright?'

Copyright law is not, fundamentally, about financial damage. It is about giving the creator of the work the right to decide how it is used. They can sell it, they can give it away for free, they can enjoin others from selling it, they can do what they want. But the decision is theirs. Outside of the very limited provisions for Fair Use and Work for Hire, you need permission from the creator of a work to use it for your own ends. That's the whole thing in a nutshell.

—Ctein, in the comments to yesterday's post

So it's one thing if somebody who is apparently well-intentioned and sympathetic messes with a famous photographer's best-known, most iconic, but half-century-old image. What about if some big corporation takes an unknown recent (2009) image from a little-known photographer and uses it without permission?

That's what happened to Chris Devers. On the left, below, is his photo "Old Jaguar E-type sports car: front view (close)." The Gap apparently used the photo on the gray pumice versions of the "Thermal body double" onesie (SKU #785589) and the 2-in-1 moto one-piece (SKU #785593) (shown on the right) at gap.com. Chris was never contacted.

Chris's interest, as you can tell from his Flickr page, is the car itself, not the photograph's potential commercial use. The original photo was posted to Flickr under a Creative Commons license (CC BY-NC-ND 2.0). The license used requires attribution, and forbids commercial use and derivative works. The Gap's use of the image violates all three clauses.

He asked for a response but never got one, although the items were removed from gap.com. The story got picked up by a large number of online sources (as one iWag quipped, "Internets are angry!")—there's a list of them all at Chris's Flickr page (to which Chris can now add TOP).

One commenter said that all Chris probably did was to get some poor low-level graphic designer fired. But a site called Styleite even suggested that this might have been among the many reasons why former Gap President Marka Hansen left the company early this year.

So here's a situation most readers can probably more easily identify with, as well as an infringer that isn't cast as inherently sympathetic (unlike Andy Baio). Are your feelings about the issue still the same after reading this as they were yesterday? 

Note, too, what one Flickr commenter called "TRAH X3IA" found: that there are numerous other very similar pictures available on Flickr with licenses that do allow derivative versions and commercial use. The Gap designer could simply have used one of those.

Lawyers, as Chris says, are talking, and the outcome of the case is still pending. As Chris wrote to me yesterday, though, "I really am interested in where the legal boundaries lie. I'm sympathetic with the point of view that re-use in some form should be possible, but I'm also sympathetic with the point of view that the original copyright owner should have some control over how material can be used—otherwise, what's the point of even having copyright?"

Mike

ADDENDUM: There's a bit of confusion about this in a few of the early comments: Chris did indeed prove it's his specific photograph the Gap used, and you can tell at a glance—just look at the matching reflections in the windshield.

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Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Featured Comment by Brigitte: "I work in the fashion industry as a textile designer and I am very familiar with this issue. (And might I add quite touchy about it, being a photographer myself.)

"The reality is that the internet has become the number one resource for many textile studios. There is a strong demand for photographic prints nowadays and it is certainly easier, faster to search for what you need on the net rather to go out and photograph it yourself.

"Typically though, the images are manipulated beyond recognition and become part of an all-over print, making them nearly impossible to spot. If we want something very specific that will be used as a single image, and therefore easily recognizable, we do purchase it from a photo library like Shutterstock.

"So I am very surprised that someone working in a company as well distributed as Gap thought he can get away with this. (It is also very possible that Gap did purchase this print from another studio. Not everything is produced in-house. It would make that company, which would have sold the image with a full copyright, accountable for this, not Gap.)

"The other thing I want to point out is that some well known brand like say Volkswagen do not allow their cars or logo to be reproduced freely. I wonder what the policy is with the folks at Jaguar?

"Anyway, the only way to protect yourself against this kind of theft is to watermark everything you do post on the 'net. No one will touch your images then."

Comments

[Anonymous]

In this case, unlike in the Miles Davis photo, the "infringer" could strongly argue that they copied the car's design and not the photo, as there is absolutely nothing to indicate otherwise.

In my view (speaking strictly as an amateur photographer, though I am a lawyer by training), a snapshot of the front of a car does not give this photographer the right to control all future uses of similar snapshots of the car's grille. For all we know (based on the information in the blog and looking at the side by side photos), the Gap designer saw the car on his/her walk, snapped a photo of the front end and worked from that.

Further, in my view, frivolous infringement claims of this sort make it harder to enforce real violations - of which there are many.

Now, if the car's designer/manufacturer was to assert that the Gap did not obtain the rights from the designer to use the grille's design, that's a whole different ballgame, again imho.

[phil]

The ironic thing is that if Gap had cloned out the telegraph wire reflections, as they've done with the radiator badges, Chris wouldn't know it was his image, as all front-on images of a car look the same.
I'm intrigued as to why they've cloned out the badges now.
I hope he gets a bit of money as there are loads of instances currently on Flickr of stolen images. What worries me is if the penalties become disproportionate to the crime.

all the best phil

[Jim Bullard]

"there are numerous other very similar pictures available on Flickr with licenses that do allow derivative versions and commercial use. The Gap designer could simply have used one of those."

Possibly, but the reflections on the windshield (windscreen for the Brits out there) of the overhead wires sure looks like a smoking gun to me. How many of those others had that same reflection?

[kombizz]

i guess you are right!

[Mike Johnston]

"the 'infringer' could strongly argue that they copied the car's design and not the photo, as there is absolutely nothing to indicate otherwise."

Of course there is. Look more carefully at the reflections in the windshield, and at the superimposition on Chris's Flickr page--he makes the case convincingly. As one commenter said, the reflections on the window are like a bar code. Nothing was preventing the designer from making an original representation of the car, but s/he chose to copy the photograph.

Mike

[Robert Spoecker]

Is Chris's Jaguar one of a kind? How does he know it is his image that was copied. If I take an up close front picture of another Jaguar E-type sports car: front view and an artist renders it and his art is put on a shirt can Chris complain?

If Chris buit a unique car from the ground up I certainly guess he would have all rights to it, but come on, what rights does he have to any Jaguar E-type sports car: front view?

[David Zivic]

I'm currently involved in something very similar in Mexico. A friend of mine owns a popular restaurant in Cabo San Lucas. He designed a trademark logo logo that is 2 palm trees and the expression "No Bad Days". He puts it on T-shirts and stickers for your car at about 6'X 6". A local clothing store scanned one of the stickers and printed the logo on T-shirts and stickers and sells them. My friend paid me to go to the store, photograph the display and buy one of the T-shirts with the name "No Bad Days" explicitely written on the receipt. He has registered the palms and expression as his trademark and will take all of that paperwork plus my photos to the Mexican Consumer protection agency and receive justice. A cease and desist, confiscation of product, and possible fine. Unfortunately in Mexico there is not really a provision for compensation. A non tort legal system. Most interesting is that the price of t-shirts in the store are $10 and $15 dollars with the "No Bad Days" shirts being the only ones for $15 dollars. when I inquired as to why they cost more I was informed that I was paying more because of the name.....adding insult to injury. Not much of a dramatic point being made here, just thought that the co-incidence of these posts co-inciding with a similar real life event was worthy of a mention.

[Patrick Perez]

@ Phil, my guess as to the reason the radiator badges were 'shopped out is because Gap was afraid of trademark infringement.

Personally, I'd remove the vertical rubber bumpers that appeared on post '67 (I think that's the cutoff date) E-Types. May as well put artificial arm's on Milo's Venus (Aphrodite).

Patrick

[ctein]

Dear Anonymous,

There's a broad pattern in the case law around derivative work that the more (financially) serious the taking, the closer the derivation is scrutinized.

This is much more abstracted and modified than the Miles photo, but the usage is much more substantial and clearly of financial value to The Gap.

I wouldn't call it a slam-dunk, but I would say it's a plausible claim of infringement.

I might not place a bet on it, but I sure wouldn't call it frivolous.

Aside to other readers: Folks frequently point to the non-uniqueness of an image as a major defense against infringement. It's not; it's only a minor factor. It doesn't really matter if a hundred people photographed a tree, if someone misuses your photograph of a tree in any form that makes it clear to the "reasonable viewer" that it is your photo, they're infringing.

Copyright law doesn't protect concepts, it only protects tangible and specific expressions. That works both ways. It means you can go out and photograph a tree to your heart's content, even if someone else say, "Hey, I photographed that tree, first!" But it also means you can't grab their photo of the tree-- their specific expression is as much protected as yours.

pax / Ctein

[ctein]

Dear David,

Hope the Mexican law is on your side. Interestingly, almost the exact same case is an important precedent in US copyright law. About 20 years ago, a T-shirt company started silkscreening a wildlife photographer's photos onto shirts.

The photographer sued, the company argued that converting the photo to a serigraph design element on a shirt was sufficiently transformative to make it a new work, and not merely a derivative one.

The photographer won, and the ruling established clearly that a change of medium and the according modest transformation did not make it a new work.

(For people still wondering, the whole Pop Art movement predated the current copyright law and, obviously, consequential court rulings.)

pax / Ctein

[Sam]

I don't think it matters. Most small time photographers don't copyright their works [this is wrong; see below —Ed.] so they wouldn't be entitled to large statutory damages. And the nominal damages that would be awarded would not interest most people from pursuing litigation. The way that copyrights are written is leaner heavily toward people with deep pockets.

[Grant]

What surprises me, is that a large corporation like Gap, would fall into this situation. Most large firms have lawyers checking for this sort of problem. Where were they?

As for any doubts about the source image. Take a close look at the right headlight. The chrome trim ring is missing. Combine that with the reflections, the off center position of the camera, and I think that the removal of the emblems was an attempted cover up. Oh boy, this is right up there with the “birthers”.

[Dean Johnston]

Hi there.

I know nothing about these sorts of things really, but I have a question. I’ll ask it, even though it may make me look like an idiot.

What is the legal position of the car designers (Jaguar I guess) in all of this? Do they have some, any, no rights regarding how their creation is depicted, said depiction used, etc.?

Thanks,
Dean
p.s. perhaps, considering the topic, I should confess to the full blown and conscious theft of Ctein’s use of “Pax/” when signing my own personal e-mail correspondence now ;-)

[John Camp]

I think this whole issue is a good deal more complicated, and in a lot more different ways, than most people appreciate. An example:

I write books for a living, and do quite well by it. One of my current books, called "Buried Prey," is now on sale in your local bookstore. At the same time, the Minneapolis Public Library currently owns 38 copies, but has 339 reservation requests yet to be filled, eight weeks after the book first came out. My next book, due in September, is called "Shock Wave." The library expects to buy 145 copies, but already, three months before the book comes out, has 1,215 reservations. Since these people go to the trouble to make reservations, then track them, then pick them up, they must like the books. I'd assume that some of them must be potential customers of mine...if they weren't getting the book for free.

Is that fair? Doesn't that take money out of my pocket, to circulate a copy of the book to so many people? If it were a friend loaning to a friend, no problem, that's just one person. But this is effectively a commercial operation. These books are put out there and advertised to the public, "Read this book for free." They not only push books to the public, they allow you to reserve them on their website months in advance...

You know what? I don't care. I love libraries. I grew up in them. I read thousands of books from them. One summer, when I was in eighth grade, I read 128 books from the Cedar Rapids, Iowa, public library, about a book and a half a day, all through summer vacation, and that probably made me into a writer. (I know the number because a library lady told me that was by far the most she'd ever seen in the summer reading program, which tracked books checked out and read, and for years I had a little ticket with the number written on it.)

My work is protected by copyright, but libraries can have as many as they want. Maybe the issue is radically different for photographers? Would Ctein be happy if somebody brought 10 Ctein photos, framed them, and then loaned them out, free to potential Ctein customers, to hang on their walls, so they really didn't have to buy their own? Well, why not?

I tell you, this is a complicated business, and at the bottom of it, somewhere, any artist is obligated to provide at least some support for the artistic culture that makes it possible for him to make a living. Money and "artist's rights" are not the only relevant criteria.

JC

[Mike Johnston]

"Most small time photographers don't copyright their works"

Yet one more time: copyright exists from the moment of creation. No further action is required. You might later need to register or defend or notify viewers of your copyright for various reasons, but that has nothing to do with the basic fact.

Mike

[JL]

I wouldn't be so completely sure that the Gap picture is Devers'. For one thing, the red reflectors in front appear square in his picture, and round in the Gap's. For another, the badges on the front grille are missing from the Gap's.

That said, it seems likely to be his -- or at best a composite. Unforunately, we won't know for sure unless and until the Gap responds to his complaint. Which they certainly should.

That said, it strikes me as preposterous to think that the President of the Gap left the company over this -- or even that it figured into her (his?) decision at all. Good lord, the net is full of self-important people who shoot their mouths off without any idea of how the world works. Including, at least sometimes but not in the case, me...

[JL]

By the way -- Yes, it is possible they cloned out the badges. It's also possible that they cloned in the window reflections. Unfortunately, given the state of current technology and the ambiguities inherent in transposing an image from a photograph to the kind of graphic that can be used on a t-shirt, it's impossible to tell. They may have collaged together four or five photographs; they may have drawn part of it by hand. The notion of an 'original' strikes me as very murky in this instance. -- Not that I don't sympathize with Devers: if they took his photo and just nudged it a bit, he may have a case. But on the face of it, the evidence is ambiguous.

[Mike Johnston]

John,
Don't you have the legal right to refuse to let libraries lend your books? I thought authors did...it's like songs on the radio. Technically, radio stations would have to pay a royalty to play songs. But the tradition that exists grew up around the fact that the publicity for the bands almost always greatly outweighs the lost revenue.

I'm not sure about either of these things, so don't assume I'm right about this. I hope someone who knows more than I do will help educate me.

Mike

[Mike Johnston]

"it strikes me as preposterous to think that the President of the Gap left the company over this -- or even that it figured into her (his?) decision at all."

JL,
Quite possibly it didn't. I think I might have to argue your basic point, though...anyone who's been fired from a job or jobs is probably all too aware that employers will list small transgressions along with big ones in justifying their action. It really depends on things we don't know...for instance, what if one of her pet projects was to put in place a program to prevent this exact thing from happening? What if she was warned it would be a problem and ignored it? What if she's the one who decided to outsource their graphic design and this is only one of eighteen other similar lawsuits pending that are collectively costing the company a lot of money? There are all sorts of internal reasons why things that look small to outsiders might have bigger implications within a corporate culture.

I don't know anything, I'm just sayin'.

Mike

[calvin]

Apropos from yesterday's Adweek
http://www.adweek.com/news/technology/copyright-lobby-takes-subtle-approach-132849

[B.J.]

Mike,
Libraries buy books from publishers and book wholesalers. They own the books, and the publishers can't dictate what they do with them. Note that this is changing with ebooks, which are licensed. You don't own the ebook; you are just authorized to use it under certain conditions. Publishers are restricting library use of ebooks, with rules such as only three library patrons at a time can download a single electronic copy. After three weeks the book "expires" from the patron's hard disk and may be "borrowed" by someone else.
In general though, publishers love libraries because they are certain sales. Sure, a thousand people will borrow John Camp's book from the library for free, but how many of them would buy it for $25 (or whatever) if that was the only way they could get it? Some, but not many, and certainly not all thousand of them. But that 150 sales to the library are the real thing.

[Herman]

Can Jaguar sue me for labeling this photo
www.efn.org/~hkrieger/markseven.jpg
"St. Mark VII Model"?

[Sam]

Mike, you only get statutory damages if the infringement is after the work is copy written.

I have a law license btw, so if you can correct the post claiming it's wrong. Thanks.

From the copyright office.

"Registered works may be eligible for statutory damages and attorney's fees in successful litigation."

http://www.copyright.gov/help/faq/faq-general.html

[Sam]

"Don't you have the legal right to refuse to let libraries lend your books? I thought authors did...it's like songs on the radio."

You don't have that legal right. First sale doctrine allows the physical copies of books to be resold, rented lent etc...This is why Netflix and Blockbuster can have rental businesses.

However, copyright holders can negotiate an agreement contractually such as releasing large portions of their library to streaming in exchange for delaying the releases of books, dvds etc...

This is how the movie and tv studios are preventing Netflix from releasing new releases for rent immediately.

Absent an agreement with a library and the copyright holder, the library would be free to go Walmart pick up a book and lend those books.

[Paris]

If you lay the T-shirt image over the original, and the windshield reflections match, then it's almost like DNA: nearly impossible that the image wasn't copied.

What's silly is that the T-shirt designer, (even if she had seen the original and intended to make an image like it) had gone out and made a similar image with her cell phone camera, she would have avoided the problem altogether.

Pure laziness.

[ctein]

Dear Dean,

I never trademarked my signature, so you're safe.

'Sides, I'd much rather "pax" became a universal sentiment.

In any case, I'd have trouble protecting my IP rights-- too plausible a case could be made for prior art.

pax / copycat Ctein

[ctein]

Dear JC,

I feel like the library issue runs rather far afield from the topic at hand, but since that cat's been debagged...

There's a practical and commonsense answer. Lending libraries are considered acceptable because they do not appear to significantly hurt the ability of publishers and authors to make their livings (historically, the argument can even be made that by promoting literacy, they've improved the "customer base").

That's really what it's all about with libraries. How that applies to any of the other discussions here escapes me.

By the by, this is what the fuss is about creating online universal libraries and related entities, like Google's book-scanning and uploading project. It's not about principles, it's about a concern that, unlike your local library, a universal online library very well could massively demolish book sales. IOW, size matters. Speed, too. It's not a business problem for your publisher if 1000 people queue up at your local library and wait their turn to read your next book. It may be a big problem if a million people can queue up at an online library and no one has to wait for their turn.

A case of "If a little bit is good, a lot may be not so good." And, much like trying to extract more golden eggs from the goose, it may very well be an experiment that is not harmlessly reversed.

pax / Ctein

[Chris Bertram]

Various people in this thread ask the reasonable question about the car designer's rights. One might also ask about the rights of architects in the buildings we photograph .... I wonder how many of the people who confidently assert that photographers ought to have strong property rights (in perpetuity? bequeathable? ...) over their photographs also thing it would be crazy to allow architects to sue photographers who make and distribute photographs of their buildings? The answer: it is all a matter of legal conventions in the public interest people, and there are no naturally available and intuitively obvious "facts" that determine the matter.

[Matthew Brown]

Generally speaking, the shapes of physical manufactured items such as cars have been considered non-copyrightable, and thus photographs of them have been considered wholly original works. There are things like design patents but these prevent others from manufacturing a similar design, and do not prevent others from photographing or otherwise depicting it.

The reason the badges are cloned out is because they are protected by trademark law, not copyright law, and permission would be required to use someone else's trademark commercially like this.

[latent_image]

John, in Canada: "The Public Lending Right (PLR) Commission distributes annual payments to Canadian authors for the presence of their books in Canadian public libraries." (The foregoing is from the PRL website.) I get a nice cheque from them every February, and I certainly appreciate this compensation for public library use of intellectual property I've created.

[John Krill]

I didn't know that Ctein was a lawyer and an expert on Copyright law.

I suggest that you check out the Blog of Carolyn E. Wright, The Photo Attorney. Here's is link to a recent post on how to add copyright info to your photos.

http://www.photoattorney.com/?p=2663

[Ed]

Mike,

In Holland if I lend a book from a library, the author gets a (small) fee. But since a library book can be lent out 1000th of times and there are many libraries that ads up. And some readers who have read a previous novel and liked it might be buyers of the new novel and in that case a writer gets around 28% of the cover price (by law). That is to promote the Dutch authors since they are writing for a community of about 25 million people.

In Holland the Buma Stemra handles the authors rights to music and when a song gets aired by a local, regional or national broadcaster this is registered and payed for.

Greetings, Ed

[Ed]

@Herman,

Niet met een geschiedenis als de jouwe. Maar misschien kan Jaguar wel de architect van de kerk lastig vallen.

Not with a history like yours :-). But maybe Jaguar could haras the architect of the church succesfully.

Greetings, Ed

[B Grace]

This particular case sure seems like one in which a deal could be made. My first question in general was about the appeal of a poorly reproduced image of an old sports car on a shirt. Perhaps, as the old saying goes, people in New York are nuts for this stuff. Say what you will about the professional clout gained by being associated with The Gap but one hand washes the other and I have a few nice shots of old British sports cars I'd be willing to sell. Heck, I might even sell my MG to them at the right price.

How about The Gap buys ten additional shots by the photographer with full releases at slightly elevated prices?

[Hudson]

-----

"My work is protected by copyright, but libraries can have as many as they want. Maybe the issue is radically different for photographers? Would Ctein be happy if somebody brought 10 Ctein photos, framed them, and then loaned them out, free to potential Ctein customers, to hang on their walls, so they really didn't have to buy their own? Well, why not?"

-----

Sounds like a artwork leasing company to me, sharing the work is not the problem, creating copies of the work is the problem. Ctein would be very happy to sell 10 prints, he would be very unhappy if someone made copies of his prints.

I help a non-profit produce a photo calendar, they pay the photographers with calendars, the photographers are happy with seeing their work in high quality print, with proper credit, the non-profit makes some money to fund operations, and some of the photographers have even been "discovered" and are making some money, everybody is happy, and we got 300 photos submitted for 2012 which we had to cut to 26 and it was hard. It amazing what a response you get seeing someones work on the web and saying "please".

-Hudson

[Bruce]

Copyright law is not, fundamentally, about financial damage. It is about giving the creator of the work the right to decide how it is used.

(For people still wondering, the whole Pop Art movement predated the current copyright law and, obviously, consequential court rulings.)

The Congress shall have the power to...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Actually the purpose of copyright law is not ultimately about protecting creators. Rather, it's about giving creators an incentive to create so that the general public can benefit from their work. Thus, while we do not want to allow so much infringement that artists stop generating new work, neither should we want overzealous protection to effect the same result.

Ctein's comment about Pop Art predating certain court rulings is a excellent example of this problem. Would we really have wanted to smother that movement in its crib with lawsuits? Or simple threat of lawsuits? Whatever you may think of the aesthetics, I think it would be hard to argue that those works don't provide important commentary on American culture.

I am an artist myself (though as a theatrical lighting designer, my work is pretty hard to copyright). I think it is often easy to forget how derivative all art is. Shakespeare blatantly stole all the plots for all his plays. Today that would be illegal. Is that actually a good thing?

Also, photography can sometimes be especially tricky. When theatrical performances are photographed, the photographer has the copyright to the images. While that photographer certainly used their creative eye to create that particular image, the entire subject of the image is the result of multiple artists' collaborative work. Should the photographer have complete control over an image that so many others work went into? Getting back to the topic, Mr. Devers' would never have been about to take that photo without the work of Jaquar's designers. Would we be better off if there were a way for them to deny him the right to create something based off his work? Why is this different from a graphic artist creating something from the image?

I don't know the answers, but I think these questions are important ones. Copyright law is actually not that old. And copyrights duration has increased dramatically since the early twentieth century. Are we sure that the balance we're striking is actually the right one?

[Mike Johnston]

John,
Ctein is not a lawyer and neither am I, although we've both been required by our various professions to have more than a passing familiarity with this subject.

Also, I can tell you from experience that many actual lawyers are not well versed in copyright and/or IP law if they're not specialists.

Mike

[Andrew Burday]

Mike, your response to Sam is correct and worth making. However, he was getting at an important and correct point, even if he got his terminology confused. Most small time photographers don't register their copyrights with the government. This means that they are not entitled to collect statutory damages or attorney's fees. They can only collect compensation for real economic losses. For most of us, that means peanuts at most, probably nothing. Unless you're wealthy enough to pay an attorney out of pocket, you'll have to represent yourself; and even if you win, the damages will be so small that there will be no real punishment for the infringer.

See here.

So even though you are correct that copyright does not depend on registration, Sam is correct that registration is important when it comes to enforcing your copyright.

[Jeff]

>Publishers are restricting library use of ebooks, with rules such as only three library patrons at a time can download a single electronic copy. After three weeks the book "expires" from the patron's hard disk and may be "borrowed" by someone else.<

Or in the case of HarperCollins, limiting a license to 26 check-outs per copy licensed. This is one reason we don't order any ebooks from HarperCollins.

[Mike Johnston]

Bruce,
My feeling has been that for every copyright scheme you can postulate, you can find examples where it would be fair and examples where it would be unfair. Current law is a reasonable balance, but it's impossible for it to be the fairest and best solution in every conceivable instance.

Mike

[Mike Johnston]

Andrew,
That's true, as Sam has pointed out to me in private. However, don't you have the ability to register your copyright AFTER discovering an infringement? That would seem to make the point rather academic to me.

Again, IANAL.

Mike

[Joe]

Architects are copyrighting buildings (as are owners) especially if they are expensive, the architect is famous, and the building is a landmark. I assume this could preclude the use of an image of a building except for editorial purposes unless the copyright owner of the building is contacted.

I am very pro copyright however, I think a building or structure (except for possibly temporary structures like for performances, art installations, etc.) is a different kind of animal. Even though a private building is on private land, it is highly visible to the public eye in almost all cases, even by air or other buildings, all the time. This inherent public exposure precludes copyright IMHO.

However, private interior structures and designs (giant photo murals?) or work never intended to be see by the general public should be copyrightable.

[ctein]

Dear Mike et.al.,

Yeah, Sam created a bit of confusion by not speaking SUFFICIENTLY like a lawyer, he said sympathetically {grin}.

Regarding registering the copyright before/after infringement, here is the best lay-language description I've found: easy to read and understand:

http://www.vwtexlaw.com/copyright-infringement-damages.htm

For those who want the more detailed nitty gritty, but still written in clear English, read sections 411 and 412 here:

http://www.copyright.gov/title17/92chap4.html#411

Also, be sure to read the linked Section 106A; it's important!

~~~~~~~~~

Dear John Krill,

I am not an attorney, but I love the law, especially IP and Consitutional Law. I am more expert in copyright law than most non-IP attorneys, more expert than some non-copyright-IP attorneys, and more expert than very few copyright-IP attorneys (thank god!).

I am never, ever more expert than Carolyn Wright.

Some years back, a non-IP attorney asserted here that because Fair Use law substantially precludes quoting a work in its entirety, regardless of the use (news, critique, etc.) it was against the law to reproduce an entire photograph or painting without the permission of the creator, even for purposes of news, critical or academic analysis or commentary, etc. He said you could only reproduce small portions of it. He was quite firmly of that opinion.

It was an, ummm, novel interpretation of the law, to say the least.

~~~~~~~~~

Dear Bruce,

Wholly in agreement with your points. My remark was meant to address the many misinformed folks who think it's about commerce and if money isn't changing hands, copyright doesn't come into play. As the law has been written, it's been deemed that the best way to promote the public welfare and provide incentive to create is to let the creator determine "the right to copy."

No reason such laws could not be rewritten and still be consistent with the establishing principles you quote. But as they stand, their purpose is to give creators control over use, regardless of the economic nature of the use, subject to certain limited exceptions.

Personally, I also think copyright term is too long. I'd limit it to the life of the natural born creator* (sorry, heirs don't get a free ride) and to some fixed number of years for corporate persons. But, honestly, this is a tweak. We get all het up about this, viz the Mouse Cops, etc., but much of it is arguing over molehills we're blowing up into mountains. Mostly, it gripes me when I hear folks proclaim that copyright law is fundamentally broken because the terms are out of whack. I think that's about a justifiable as saying your car is broken when the carburetor needs adjustment.

(*assuming there's no major life extension on the horizon)

pax / Ctein
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-- Ctein's Online Gallery http://ctein.com
-- Digital Restorations http://photo-repair.com
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[Dave Kee]

"John,
Don't you have the legal right to refuse to let libraries lend your books...Mike"

Mike: Don't go giving John any ideas. I always have a library copy of one of his talking books in my car CD player whenever I take a long trip and they make the miles fly.

Dave Kee

[Bill Rogers]

Actually, you should remove all registered trademarks from photos - I'm sure that's why the Jaguar logo was removed.

But what about the car itself? Let's assume that some skillful shade-tree mechanic clones a Bugatti Veyron's body. Is the auto design itself copyrighted? I've always wondered ...

[Steve Smith]

but I'm also sympathetic with the point of view that the original copyright owner should have some control over how material can be used—otherwise, what's the point of even having copyright?"

Interestingly (to me at least) there is a difference in the way images and other artworks can be used compared with music.

If I create a photograph and someone wants to use it, they have to have permission from me and possibly pay me a fee. If I write a piece of music and release it on a CD, anyone can re-broadcast it or use it in a movie soundtrack, etc. as long as they pay the correct licencing fee to PPL who would eventually send my share of the licening to me. I would have no say in the use of the music and the user would not have to ask me if it could be used.

Perhaps there is a case for a similar system for visual arts.

[Nigel]

"...Copyright law is not, fundamentally, about financial damage. It is about giving the creator of the work the right to decide how it is used..."

True in part, but surely the fundamental purpose of copyright is to encourage the public disclosure of creative work ?

Everything else is detail.

[Paul Luscher]

Had this happen to me years ago. Shot a photo of Taj Mahal, the bluesman, which, without my knowledge, ended up being used in a local record store's advertising.

Contacted them and told them this was a violation of copyright. They first said nothing prevented them from doing this, but ultimately they agreed to give me a number of free CDs to shut me up...

[Jim Hart]

John,

Well, you made at least one sale; after reading your post I logged into Amazon (using the TOP link, of course!) and downloaded "Buried Prey" for my Kindle.

Regards,

Jim

[ctein]

Dear Nigel,

Heh, you might think so. But actually, no. The establishment of copyright is solely about promoting the creation of new work, and that may or may not be best served by public disclosure.

Understand that in the absence of copyright, anyone can do anything with any content they can lay their hands on. It's all fair game. You can't steal what doesn't have a property right.

For example, if some entity, a company, a school, whatever asks me to write instructional materials for them, they may very well not want that material publicly disseminated, for any number of fairly obvious reasons. In the absence of copyright, anyone who gains possession of a copy of that textbook or manual can reproduce it far and wide.

As another example, a patron might commission me to create a work for them. It's for them and them alone. Or, at least for them to do as they see fit with. Absent copyright, anyone who gains access to it can ... you guessed it... redistribute it far and wide.

Even public disclosure is not a universal thing. When I would write an article for PHOTO Techniques magazine, we had a contractual agreement on how that article could be used, and they, in effect, had a contractual agreement with their readers on how the readers could use the issues of the magazine. There was very broad access to those articles, but it still wasn't universal, even in theory : You had to be able to read English and you hd to be able to get your hands on a physical copy of the magazine.

As a general social principle, public disclosure is a good thing and promotes art and commerce. But not always, and copyright law decides that's a decision best left to the copyright holder, because it can also provide a disincentive to create.

~~~~~~

Dear Steve,

You're entirely correct, which is why people who attempt to make legal analogies between music usage and other kinds of copyrights are usually wrong. There are whole bunches of rules and laws around music and licensing that simply don't apply to other media.

But that doesn't mean they couldn't. A licensing system like that may prove to be the only economically viable one for photographers. It's nice to have the luxury of being able to pick and choose who uses our work, but if the universal access of the Internet and widespread infringement become the cultural norm, that may become a luxury we simply can't afford any more. if it's a choice between that luxury and getting reasonably compensated for my creations, I'll give up the luxury.

On the other hand, as image search engines improve, it may become easier and easier to track down infringers, to the level where “bounty hunters” like the previously mentioned law firm that Jay Meisler employs, can make a very good business for them and for us out of tracking down infringements. If it becomes cheap and efficient to do that, also, you don't need to hit people upside the head with five figure damages… Unless they really do deserve it. You still want the penalty to be big enough to dissuade them from trying it again–– it should *hurt.* But it may not be necessary for it to be crippling.

pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
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-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
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[Steve Jacob]

To Bill Rogers...

"Let's assume that some skillful shade-tree mechanic clones a Bugatti Veyron's body. Is the auto design itself copyrighted? I've always wondered ..."

The paper plans are, even the CAD drawings, but you cannot copyright an object.

Unless Bugatti may have registered the body shape as a trademark, or it may be covered by design patents (not outside the US) you can build an exact lookalike as long as it does not infringe any engineering patents.

However you cannot call it a Veyron. The name is a registered trademark, as is the Bugatti name and logo.

[David Dyer-Bennet]

The wire-pairs on the left (reflections in the windscreen (it's a British car, so it's a "windscreen" :-) )) do seem nearly definitive; but the bits reflected on the right don't seem to match so well.

There must be thousands of photos of this model from essentially straight on that could have been used; if you just rubbed off the identifying differences. But they didn't (or maybe composited several; but there were at least two things people cited that match this particular original too closely to be ignored). Not much originality in photographing a car straight from the front, as the number of such photos proves. Or, the originality being exhibited is mostly that of the car designer, which is why so many people want to take that full-frontal photo.

[Kelvin]

Hi Mike and Ctein,

At least removing copyright from one's photos (or having it violated) solves the archival permanence problem!

[David Dyer-Bennet]

Copyright has a term associated with it. The deal, as I understand it, is that the special rights granted by copyright are created and given to the creator of the work, BUT the work will fall into the public domain at the end of the term. I view this as encouraging creative endeavor, BUT insisting that the work eventually become part of the intellectual commons, for the use of all.

(I agree with Ctein and whoever also said that the current copyright term is far too long. Under current rules, most works will be so totally dead when they finally enter the intellectual commons at the end of their term that they will just remain dead there. This benefits nobody. The current rules only benefit corporate holders of a very very few unusual copyrights. A fixed, relatively short, term similar to patents makes more sense to me. 25 years, maybe. Or 15.)

I don't actually approve of the use of copyright to suppress publication of a work, as is done periodically. But it's inherent in the process. You have no negotiating position to sell rights if you can't block publication.

(One problem with a straight "life of the creator" term, with no "plus", is that, as you get older, contract negotiations get kind of interesting. "We think we can just wait a year or two and your rights will lapse; we're not in a hurry." And, while rights of survivors aren't of anything like paramount importance, it does seem hard on the family that the entire income stream evaporates immediately at the death of the copyright holder, even for works created last week. A short, fixed, term solves these problems.)

[ctein]

Dear Kelvin,

You saying The Gap's cheap, silkscreened clothing is going to prove more durable than the digital photographs???

Oh, that's harsh, man. [vbg]

pax / Ctein

[ctein]

Dear DDB,

You've raised some very good points. It's an interestingly complex problem.

I hadn't thought about the whole aging out thing. Even putting aside venal contract negotiations, it's hard to put a price on rights, or make them useful to a buyer, if you fear those rights will expire, along with the creator, in some unreasonably short period of time.

OTOH, short, fixed terms really screw people like me and other creators who gradually build a reputation and following. They actually more favor the corporate entities who turn out product and no one really cares what they turned out 15 years ago, unless it's something that's been an ongoing money-maker.

For example, my last-moon-launch photos are almost 40 years old. My first-shuttle launch photos are over 30. My Baja/solar-eclipse portfolio is just about to hit 20 and my Scotland portfolio is over 16. A 15 year term wipes out my rights to a very, very large chunk of what sells. Even a 30 year term wipes out all my space program photography.

Now, as I move more into fine print sales, that's less important-- I've still got physical possession of the films and digital files. So, I could live with the old, traditional 28 years.

"Life of creator" seems nice and simple... but as you logicked out, not so much. sigh.

pax / Ctein