Notice I said it should weigh on the scale. And notice my specific use of “copying”.
This isn’t directly responsive to the OP’s situation, but two of YouTube’s most widely watched photographers, Tony and Chelsea Northrup, have a video that recounts their struggle to get compensation from a companythat used one of their pictures without permission on a product box.
The video is called $60,000 for our Stolen Photo: We made a Copyright Thief PAY!!, but the title doesn’t come close to telling the whole story. Spoiler: they don’t turn a tidy profit. The video runs 26 minutes, because the story is long and complicated.
I want to thank you all for your answers and comments. I’ve got a lot to think about, now. Once we have made some decisions on this subject, I promise to return to this thread and report our progress. Again, thank you all!
Oh, we noticed your use of the word “copying.” So what? A derivative work is by definition not a copy. All derivative works incorporate elements of other works, sometimes big ones. If they didn’t, they’d be originals.
Also, why are you suggesting that this or any whim of yours “should weigh on the scale?” Lots of people find the IP law concept of obviousness unworkable, but their whims don’t affect the test for obviousness: is the invention obvious to an omniscient practitioner with average skill? Their opinion of what “should weigh on the scale” is irrelevant to the USPTO.
You conceded that this whim is your personal preference and absolutely does not have the force of law. Why do say that your own extra-legal tastes “should weigh on the scale?” Why yours and not mine or anyone else’s?
What are you talking about? You understand that the preparation of a derivative work can also involve copying, right? In fact, they do most of the time. The questions aren’t mutually exclusive. If you have made copies on your way to making a derivative work then that copying may be subject to an infringement claim and will be a factor in determining whether fair use protects you.
Because this is a discussion board where people discuss things, like opinions. And my opinions aren’t pulled out of thin air. They are based on decades of work on IP law and reasonable inferences. Every IP lawyer expresses opinions about IP. And sometime those opinions become law.
And this isn’t a mere whim. There is at least one court decision that suggests there is no de minimis sampling of a sound recording, this can never be fair use. A sample can be part of a derivative work. If there’s no de minions sampling of sound recordings then it’s logical that there’s no de minimis " sampling" of other kinds of works.
This is a bizarre, unhinged rant. Why do you participate in message groups of people expressing reasonable opinions about policy enrages you?
Talking about how things should weigh on the scale of fair use is something that people on copyright law do all the time. I’m sorry it upsets you.
Maybe I should clarify. What I’m calling your whim is your assertion that digital derivative works are inherently less original than analog ones. Since you’ve implied that you’re an IP attorney, you can surely cite statutes, case law, etc to support that assertion.
Please do.
I’m not an attorney of any stripe, so maybe I’ll learn something.
Making posts like this does not reflect well on you and definitely does not help the point you are making.
You repeatedly state extreme “one view and one view only” positions and anyone who disagrees with you is …, well, negatively skewered. Despite people posting links to official definitions and such.
My advice to EdelweissPirate is to take what you say with a massive grain of salt and not try to reason with you. It doesn’t seem to help.
I know good advice when I hear it. I’m taking yours. Cheers!
I’m the only one in this thread who has been berated for stating an opinion, clearly identified as an opinion.
In fact, if you understand how the law works, opinions like this are important. The copyright law is not written in minute detail. In fact, one of the most important tests in copyright law—the test for fair use—is a balancing test. There are few bright lines.
When someone argues fair use, every side gets to start piling up opinions on how different sets of facts should weigh on the scale of fair use—it’s a scale, not a line. Not every one of those opinions has been subject to a clear ruling, but if you find yourself facing a judge, you’re going to have to make an argument about it, and try to persuade a judge or a jury.
The law works largely by people making arguments about how certain facts fit definitions. You’re not going to win a case just by citing a definition.
I didn’t notice any effort on the pirate’s part to reason with me, just demands regarding why I should have the temerity to express an opinion.
“[R]eason” with you??? “[R]eason”??? Seriously? You posted this, remember:
All for quite rationally questioning your very bold assertions in a very mild way.
You need a major dose of introspection.
WOW! This is very telling of your own ethical conscience, that you believe it’s okay to steal others work.
Is it your son that wants to sell his work or you?
Be fair. He wants to know what’s legal. And he’s concerned about his son’s future.
I guess there’s legal in the real world and then there’s legal for disabled people…is that what you both are saying?
I think it’s more like there’s mugging an old lady for $5 and there’s picking up $5 that someone dropped on the street. Our OP wasn’t sure which one this is, and having been told the legal system considers it a lot more like mugging than found money, changed his tune.
Now, he is talking about impressionism rather than photorealism, would that change anything about the copyright? At some point, using a photo for inspiration isn’t copyright violation, because you’re not actually copying the photo anymore.
Moderator Warning
This is way out of line for GQ. This is an official warning for a personal attack. Do not do this again.
Colibri
General Questions Moderator
Moderator Note
Let’s refrain from personal remarks directed at other posters. No warnings issued, but everyone needs to dial it back.
Colibri
General Questions Moderator
Since this involves a real-world legal issue, let’s move it to IMHO.
Colibri
General Questions Moderator
Mere inspiration is never infringement. Copying is where the problems arise. How much of the original was used and how important those parts were to the original are the main sticking points. Even then, if the new work is strongly transformative–if it takes an existing thing and makes a new thing out of it–it may be ok.
Again, I think this is unfair. He’s unfamiliar with the law and just wants to know what is allowed.
Some years ago I saw at a student art show a watercolor copy of the Afghani girl with the haunted eyes from a National Geographic cover. It was very well done but it being shown publicly surprised the hell out of me, doubly so since it was a juried show.
I didn’t raise a fuss, though.