This question came up in a discussion with some of the other artists at my place of work. How exactly does the copyright on a digital image - say, a jpeg - work? If I take a copyrighted image and modify it, is it still protected by the copyright? If not, to what extent must the image be modified before the copyright no longer holds? And do the rules differ depending on whether I plan to profit off of the modified image?
Jeff
EJ:
I’m not giving you any legal advice here, just a bare bones primer on copyrights. Without trying to sound like your father, if you have serious copyright questions, see a lawyer now or its very likely that you might hear from one later.
Copyrights on digital images work in the same manner as do copyrights on oil paintings. If you “copy” someone’s work, without permission or a real claim of “fair use” you will be on the hook for copyright infringement.
Simply modifying the work will get you a copyright in the modifications but will probably not get you off the aforementioned hook, unless your new work falls into the fair use arena. A modification of an existing work is referred to as a derivative work and those are covered by the copyright in the original work.
Copyright infringement requires that there be actual copying and that the works be “substantially similar”. If you are actually copying the digital image in question, you had better make very sure that the works are not substantially similar. To determine whether there is substantial similarity you will likely have to ask a jury, so again, make your work is VERY different just to be sure.
One other thing that is interesting about copyrights is that they do not cover ideas. Copyrights extend only the expression of ideas. Therefore, you could copy ideas from a copyrighted work, but be very sure to stay away from the author’s copyrighted expression of those ideas.
cj
Yes, it is still prtected and you would be infringing. You can look at the Copyright Website that has links to some interesting case law such as Robert Rauschenberg’s troubles (he makes collage art and has been successfully sued for incorporating other people’s work into his own).
There is another really good example involving someone who digitally manipulated a photograph to make it very different from the original and was sued (and lost) – but I’ll be damned if I can find the cite. IIRC someone modified or immitated the composition of a photograph of Roosevelt’s wheechair by a porch railing.
IIRC, your work would have a separate copyright as a derivative work, but I’m hazy on the details of what kind of licencing would be required for the source image.
No. Whether you make money or not, if you copy someone else’s protected work and give it away for free, you are still infringing.
Check the link above, it has some really interesting reading. Kinda fun reading too.
A-ha! Found the “wheelchair photo” cite:
MELVIN P. CURTIS v. GENERAL DYNAMICS CORPORATION, 1990 U.S. Dist. LEXIS 17333; 18 U.S.P.Q.2D (BNA) 1608; Copy. L. Rep. (CCH) P26,776 (W.D.Wash. 1990).
The deliberate imitation of a photographer’s original image of a wheelchair on a porch, even though different in several technical and compositional respects, was held to be willful infringement.
An ad agency made a comp of the original photograph, and then set up an all-new photograph based on the composition of the original. Darn it, I think they used to have a side-by-side comparisson of the two on the page I linked to above, but it doesn’t seem to be there anymore. This is not quite the same as digitally manipulating an original image, but I believe it falls under the same laws because they used an original composition.
Thanks for the info and links, guys. It’s not a serious issue, so I think I’m safe not contacting a lawyer - just a matter of curiosity, what with the prevalence of Photoshop-altered images and such.
Jeff
There was a popular myth that went around and you’ll probably still encounter that you can change an image by 10% and then it’s legally yours. This, as it turns out, is not so at all.
For one thing, how do you measure this “10%”? And for another, see all the above posts that prove it’s not even close to being true.
Luckily one of my best friends is a digital photographer, so I have plenty of genuine owned works for me to utilise.
IMPORTANT POINT AS YET UNMENTIONED:
It is illegal to modify a copyrighted work without the permission of the rightsholder. The copyright gives the author the exclusive right to do several things with the work. The first is to make copies of it. However, the author also has the exclusive right to modify the work or make derivative works. Any derivative work that isn’t either permitted by the author or otherwise legal under the statute (such as by being a “Fair Use,” if that exception even applies to derivative works, which is an open question) is a violation.
If your derivative work is legal (whether because it’s authorized by the copyright holder or because it falls under an exception), then the rightholder retains ownership of the underlying work and you get rights to the modifications.
–Cliffy
Cliffy is correct – anything made from a copyrighted image is a “derivative work” and requires permission. There are exceptions for parody.
Thanks for all the responses, guys. Here’s a related question:
How does this compare to the laws regarding copyrights on music? Isn’t it legal to sample X number of measures from a song, or something? Also, how similar does the melody of a song have to be to a copyrighted work before it’s considered a violation?
Jeff
Re: music. It’s up to the courts to decide. However, if the melody is recognizable, you’re playing with fire.
Actually, due to music licensing, you could sample music as long as you pay ASCAP fees to the composer; you don’t have to ask for permission.
As far as similar melodies, again, it depends on whether the original artist wants to sue. The Kinks considered suing the Doors over “Hello, I Love You,” because of its similarity to “All The Day and All of the Night,” but decided against it and it seems that Morrison just happened to work out a similar tune. However, George Harrison lost a case where he was sued due to “My Sweet Lord” (in a nonsensical ruling of “subconscious plagiarism” – a really dumb concept).
As a rule of thumb, if an average listener would have trouble distinguising one melody from another, there’s a case for infringement.