Copyright question

[digs]

@digs

I knew of a crooked ad agency that would work and work to find an artist to do a painting from a photo, telling the painter to “change it enough that no one will notice the similarity”. Well, a lawyer schooled them quite forcefully on the cost of that and they quickly decided to find the original photographer and pay him a couple thousand…

By the way, here’s a quote from that copyright lawyer:

It doesn’t matter if you change the photo a certain amount or combine various originals and call it “a derivative work”. All a judge will base his decision on is this question…

“If you put the original photo and the new painting in front of twelve randomly-selected people, and ask them ‘Do you think THIS artwork came from THAT artwork?’… what will they say?”

[Rich_Mann]

Thanks all again for all your help and support!

To answer some nagging questions; Anson’s art is, despite its impressionistic nature, quite easily seen as derivative. Unfortunately.

I have a hard slog ahead of me to get permissions to sell his work. I don’t relish dealing with the people who control these things, but that is the job I’ve inherited. Wish me luck!

[Acsenray]

Given some time to cool one’s jets, I thought it worth it to offer some details on this point.

@EdelweissPirate

I see. Thanks for answering. But of course, we’re not talking about copies—we’re talking about derivative works, which, by definition, aren’t copies. Rather, they are original works of authorship that incorporate major elements of previous works by other authors.

When someone brings a copyright infringement claim against someone for this (presumed) derivative work, you’re going to see that the plaintiff is very likely going to make both a claim of infringement by duplication and infringement by preparation of a derivative work without authorization.

The reason for that is there very often are portions or aspects of a derivative work that can be classified as direct copying. For example, in a screenplay for a motion picture based on a short story, there are often instances of direct copying. The defendant may very well have to defend on both counts.

But regardless, when you are asserting a defense of fair use, you are going to have to answer the same four questions, whether the claim is for infringement by duplication or infringement by preparation of a derivative work.

So, here are the fair use factors from Section 107 of the Copyright Act:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.

Notice that the defendant has to answer about “the use” when making a fair use argument. And in the case of a digital work, a significant portion of “the use” at issue is the direct copying of the work in the first place. So, the final work has made use of the original work.

And when you get to the third factor, you see that “the amount and substantiality of the portion used” is relevant. My argument is that when you make a digital copy of something, then you are making a copy that is so faithful and exact in its extent, that it is far more substantial than non-digital copying.

And in my above comments, I didn’t limit to just digital methods of copying. I also mentioned “mechanical” means of copying, which would include things like photography, photocopying, and tape recording. So this has nothing to do with “a bias against digital media.”

It’s the fact that when you use any kind of technological aid to make your copy that produces a copy that is extremely faithful to the original by operation of technology, rather than by operation of the human eye, hand, and ear, that the substantiality of the portion of the work that you are using without authorization is much higher, by the very nature of the technology itself.

By your logic, wouldn’t a photorealistic-but-hand-painted copy of a photo be more protectable than a digital derivative work with original editorial content?

No, not necessarily, because I’m not prejudicing against digital methods. If your hand-painted result ends up being an exact copy, in the same way that the exact copies you made use of when creating the digital work, then you are still infringing. It’s the defendant’s burden to prove fair use. I didn’t say that non-digital means gives you a safe harbor.

We agree that this whim of yours is unsupported by the law

What I’ve said here is exactly the kind of argument you’re going to have to face from a lawyer when facing an infringement claim. There might not be any case that says exactly what I’ve said yet, but there also isn’t a case that says the contrary, so far as I know. So it’s a valid argument.

And as I said above, there is at least one case from a federal court that said that there is no de minimis defense to a claim of infringement of sampling a recording of a performance of a musical composition, as opposed to copying a musical composition by playing it yourself on an instrument with your own hands. So this concept already exists in the ether of copyright cases, and I bet it will come up again.