2. Popular Copyright Myths
· If an image is on the internet/Google it is in the
public domain.
· If there is no copyright notice on the image, I don’t
need permission.
· If I don’t profit from the use, I don’t need permission.
· If I remove the image after notice, I don’t owe any
money to the copyright.
· If I alter the image X% I don’t need permission.
· If I only use a part of the image I don’t need
permission.
3. Copyright Basics
The US Constitution gives Congress the power to
enact laws “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.”
4. When do you acquire copyright protection?
· Copyright protects “original works of authorship”
that are fixed in “a tangible form of expression.”
· Rights begin at the moment of “fixation.”
5. What is protected?
· literary works (all text, including computer software)
· musical works
· dramatic works
· pantomimes and choreographic works
· pictorial, graphic, and sculptural works
· motion pictures and other audiovisual works
· sound recordings
· architectural works
6. What is not protected?
· ideas, concepts, or discoveries
· titles, names, short phrases, and slogans
· works that are not fixed in a tangible form of
expression such as improvised speech or dance
· works consisting entirely of information that is
commonly available and contains no originality
· anything written or created by the US government
7. What rights does the owner control?
Rights to:
· make copies of the work
· distribute copies of the work
· perform the work publicly (such as for plays, film,
or music)
· display the work publicly (such as for artwork, or
any material used on the internet or television)
· make “derivative works” (including making
modifications, adaptations or other new uses of a
work, or translating the work to another media)
8. How long does copyright protection last? (Current Act)*
· for the life of the author, plus 70 years
· 95 years for corporations
*since 1978
9. Duration (pre 1978 and post 1978)
Created
January 1, 1978
or after
PROTECTED FROM TERM
When work is fixed
in a tangible medium
of expression
For works of individual authorship:
Life + 70 years
For works of corporate authorship: the shorter of
95 years from publication, or 120 years from creation
Created before
January 1, 1978
but not published
January 1, 1978, the
effective date of the 1976
Act which eliminated
common law copyright
Life + 70 years or December 31, 2002,
whichever is greater
Created before
January 1, 1978
and published by
December 31, 2002
January 1, 1978, the
effective date of the 1976
Act which eliminated
common law copyright
Life + 70 years or December 31, 2047,
whichever is greater
Published from
1963-1977
When published with notice 28 years for first term; now automatic
extension of 67 years for second term
Published from
1923-1963
When published with notice 28 years + could be renewed for 47 years, now
extended by 20 years for a total renewal of 67 years.
If not so renewed, now in public domain
Published
before 1923
In public domain None
DATE OF WORK
10. What is Public Domain?
· works out of copyright
· US - All published works before 1923
· works that fell out of copyright for failure to
register or renew under 1909 Act or for lack
of notice before 1989
12. Who owns copyright?
· a freelance artist who created the copyrighted work
· an employer who hires employees who creates
copyrighted works as part of their job
13. Can copyright be transferred?
· Non-exclusive rights can be transferred without
a writing.
· Exclusive rights require a writing signed by
copyright holder or authorized representative.
14. Limitations on owner’s rights
· "Fair Use" doctrine allows limited copying of
copyrighted works for educational and research
purposes.
· The copyright law provides that reproduction "for
purposes such as criticism, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research" is not an infringement of
copyright.
15. What is Fair Use?
· class handouts of very short excerpts from a book,
magazine, newspaper, etc.
· quoting for purposes of reporting the news or
criticizing or commenting on a particular work of art,
writing, speech or scholarship
18. What is not Fair Use?
· using a photograph or other image to illustrate a
newsworthy story (because the subject of the story is
newsworthy it does not make the image newsworthy)
· creating a similar photograph that incorporates
elements of the first photograph
23. Why should you worry about copyright?
· substantial monetary damages can be awarded (actual
damages, profits)
· statutory damages ($750-$30,000 and up to $150,000
if the infringement was willful)
· the infringing use can be enjoined
· attorney’s fees
· criminal offense under some circumstances
24. Who is responsible?
· the company that directly infringed
· employees or individuals who participated in the
infringement or should have supervised
· anyone who publishes the infringing image whether
they had knowledge or not
25. How to license
Broad Rights/Subscription
· May use same image for
many uses without
additional license -
restrictions still apply
· No exclusive use available
· Availability to use a
collection of images for a
yearly/monthly fee
(subscription)
Rights Managed
· License limited to particular
use and time period
· May request and pay for
some exclusive use
26. Actual copying
· Must show the alleged infringer had access to the original
· Must show the alleged infringer actually copied protected
elements of the original in creating the second image
27. Derivative Work
This image was created by
a computer graphics artist
who “borrowed” images
from several sources.
28. Original art
These are the two images that were infringed
upon to create the Newsday cover.
29. Substantial similarity
· There is no hard and fast rule for what is
substantially similar
· The two photos are compared to one another in court
30. Sahuc v Tucker
Lou Sahuc: Decatur Street Gate Lee Tucker: Breaking Mist
31. Elements that are compared
· Posing
· Lighting
· Angle
· Background
· Perspective
· Shading
· Color
· Viewpoint
32. Total Feel and Concept Elements
Elements in the particular photo that tend to
make it original and unique
33. Idea-Expression Dichotomy
· The idea is not protected.
· Only the expression of the idea is protected.
· Where the way the idea is expressed tends to merge
with the idea itself, there is no protection.
37. Scenes a Faire
· Things that tend to look a certain way in any two
photos of the same or similar subject
· For example, a photo of a building will naturally look
similar to another photo of the same building.
40. What’s copyrightable?
Protected
· Particular expression
· Total look and feel
Not Protected
· Ideas
· Expression merged
with an idea
· Commonplace subjects
and compositions
52. Copyright protection online and offline
· Register the work with the Copyright Office
· Include copyright information with work - particularly
online (CMI)-this includes copyright notice
53. Why register?
· Required before filing a claim (US authors)
· Remedies limited to actual damages and no ability to
recover attorneys’ fees if work registered after
infringement.
· With registration before infringement, you can seek
statutory damages ($750-$30,000) and attorneys’ fees
and statutory damages can be enhanced up to
$150,000 if the infringement was willful.
54. Registration options
· Photographers - group registration regulations for
published works (www.copyright.org)
· All artists can register large groups of unpublished
works.
· Published artwork must registered separately from
unpublished (display not a publication).
55. Requirements
· Currently Form VA (www.copyright.gov/forms)
· Deposit of work
· Currently $45 per application registration fee
· Additional special handling fee if needed on
expedited basis
· Do not use regular mail
56. Digital Millennium Copyright Act (DMCA)
Section 1202 Damages for Removal of Copyright
Management Information (CMI)
· Elements-Remove or alter CMI (watermark/copyright
information)
· intent to induce, facilitate or conceal infringement
Statutory damages $2,500 to $25,000
57. ISP Safe Harbor
· No monetary liability for content of user stored on its
system if infringing content is removed from website
expeditiously
· ISP must receive proper notice
· Can still proceed against direct website infringer
58. Notice and Take Down Letter
· Send to ISP’s registered agent
· Must identify infringed works and location
· Must be in made in good faith belief
· Must swear you have authority to represent copyright
owner under penalty of perjury
· Physical or electronic signature
THESE ARE SOME COMMON MYTHS THAT THIS PRESENTATION IS MEANT TO DISPELL
The internet has made information and images available at everyone’s fingertips, however, what exclusive rights belong to a copyright holder, and the uses that do not require permission are not well understood. Hopefully, this presentation will make these issues a bit clearer or at least better understood.
Source of US copyright law comes from Article 8 of the Constitution
The founding fathers recognized that the science and arts would benefit from allowing an artist to control rights and derive an economic benefit from the work created. This is contrary to many user groups who now argue that the arts and sciences would progress by allowing users unfettered access to artist’s works without permission.
The full US Copyright Act can be found at 17 United States Code.
The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device.
“Original” is a minimal level of originality. Excludes telephone listing, order forms and other items that can only be expressed in essentially one way. It does not require “creativity”. Almost any photograph can meet the minimum level of creativity.
Photographs, illustration and computer generated graphics are protected as “pictorial, graphic and sculptural works”
17 USC Section 102(a)
Remind the audience that other laws may protect these categories, for example, short phrases could have trademark protection.
Section 102(b) excludes ideas, processes, etc.
Section 105 –copyright not available for US Government works-but government may hold a copyright
Copyright does not protect the IDEA only the EXPRESSION of the Idea.
Question always for a creative person, where to draw the line, where does the idea stop and the expression start? How much can you be influenced by an idea without taking copyrightable expression?
Section 106 describes exclusive rights a copyright holder controls.
These rights are exclusive to the copyright owner and permission is needed, unless there is a specific exception such as fair use, or limited use for preservation by libraries or for use in education under the TEACH Act which permits certain performances and displays. These exemptions are limited so its better if uncertain to assume that permission is needed to use a work.
(For statutory limitations, see Sections 107 (fair use) 108 (libraries and archives) 110 (education). Other exemptions exists under the Copyright Act as well).
Copyright is like owning a bundle of sticks (like pick up sticks). You can give different users different rights/sticks. The same image can be used on a magazine cover, in an advertisement, in a website design or incorporated in a documentary film, for example.
The current act has been effective since 1978. Under the old Act of 1909, there was a 2 tier system for published and unpublished works. Published works required registration and subsequent renewal during the 28th year. As there have been many amendments extending the second renewal term, the term for pre 1978 works is very confusing. It is best to consult some very comprehensive charts available through the Copyright Office website where you can find circulars on copyright duration or some university websites such as Cornell Law School
www.copyright.gov
Circular 15a-Duration of Copyright
Circular 15t -Extension of copyright term
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
Example of a chart
Recommend where possible to include notice or at minimum a credit. It prevents someone from claiming innocent infringement and a reduction of damages. It helps identify the copyright owner or representative. You cannot lose copyright by no notice or improper notice. If an orphan works amendment to our copyright law is enacted, it will assist in locating the copyright holder and avoid having a protected work be considered an orphan that can be used without permission. With digital artwork, you can include the copyright owner name in the meta data.
As credit or attribution is not required in most instances under the US Copyright Act, it is not an infringement if a work is used without credit. Credit can only be required by contract. Credit should be requested and required with any non-advertising use and included in the license agreement. If a work is licensed through a representative, the representative may share the credit line with the copyright owner as a source credit (i.e. Photographer name/photo library). Most advertising uses do not include a credit notice. This is result of industry practice. An advertisement is made up of various components, including the artwork, so credit is not given to any one party.
Just because a company pays a freelance artist to create an image, does not transfer copyright ownership. A transfer requires a writing signed by the author unless you are a true employee.
Section 104 of the Copyright Act requires a writing for a transfer to be valid (except by operation of law)
This is a defense to infringement and is limited in scope. If a use qualifies as fair use is decided by the courts, which balance various factors, and is decided on a case by case basis: Think GUIDELINES, not RULES.
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work; factual or more artistic
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
Factor 4 is given the most weight. Courts talk about whether a work is “transformative”.
The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific percent of a work of visual art that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Fair use is determined by the courts on a case by case basis and there are no precise rules to determine when the exemption applies.
Food Chain Barbie- Artist Thomas Forsythe prevailed against Mattel
The court found that Mattel was trying to use copyright and trademark law to chill free speech. The artist selected Barbie as a symbol in a photo series. These are the 4 images with Barbie in blenders, oven and martini glass.
ASK AUDIENCE WHAT IS THE COMMENTARY ?
ANSWER: Comment on commercialization and product that best shows our insecurities of our beauty and perfection obsession consumer culture
Mattel, Inc. v. Walking Mountain Productions, 2001 WL 929923 (C.D.Cal.2001).
Court awarded Forsythe his attorney fees.
Dungeon Barbie - Mattel v. Pitt, 229 F.Supp.2d 315 (2002)
Susanne Pitt merely wrote the court a letter and the court without a formal motion (unusual for a federal court) dismissed Mattel’s action. There was no danger of market harm and there is a public benefit to criticize icons.
Annie Leibovitz case-She sued the movie studio for copyright infringement and lost-defendant argued parody and prevailed. The defendant established that they were making a social comment on her photograph. This photograph was a famous and controversial Vanity Fair cover. Parody allows you to borrow just enough to conjure up the original. In this case, notice that even the same ring was used in the recreated image. Shows that even a commercial use can be parody as it was to promote a movie.
Leibovitz v. Paramount Pictures Corp., 948 F.Supp. 1214 (S.D.N.Y.1996), aff'd, 137 F.3d 109 (2d Cir.1998).
Examples:
When a celebrity dies, the death is newsworthy, but any photograph of them is only descriptive and must be licensed.
However, if a famous artist’s dies, the news media could show a few samples of his or her most recognized artworks without permission.
This was the photographer’s child who the Tonight Show’s artist added tattoos and piercing. What is the parody? Got Milk was the subject of the parody, not the photograph. Case settled as this was a use that was known to require a license but had just been overlooked. Common that a use like this will be resolved if you speak to the correct person. mage was used on Tonight Show as one of the jokes.
Example of what is not “parody”. Photographer went to a trade show and found that the portrait of Bob Dole that was published on the cover of Time magazine was on a promotional bag for Infotrac. No permission had been granted.
The name DOLE is being parodied, not the photograph. Because it is amusing, does not mean that it is a parody. For parody to apply, the comment should be on the photograph itself, not the name. Any portrait of Dole would have sufficed. There was nothing about this particular photograph that lent itself to this treatment. Access to images on the web and desktop publishing makes these types of infringing uses hard to resist by some designers.
Why was the photographer upset? When a photograph is misused, the subject often blames the photographer, whether there is any connection or not. He was concerned that he would lose access to politicians as a result.
Koons v. Art Rogers 506 U.S. 934 (1992)
Sculpture artist Jeff Koons lost this copyright infringement case. The artist asserted it was fair use to change a photograph into a 3 dimensional work without obtaining a license. The court disagreed finding that substantial copyrightable elements were borrowed despite the change in medium. In this situation Koons was a famous sculptor and Rogers was a commercial photographer. Koons specifically requested that his artisans copy the photograph exactly. He was seeking to copy the “expression” of the couple holding the string of puppies.
In Blanch v. Koons Blanch v. Koons, 396 F. Supp 2d 476 (S.D.N.Y. 2005), aff’d, 2006 U.S. App. LEXIS 26786 (2d Cir. 2006).
In October 2006 the Second Circuit found that it was fair use for Koons to create a collage using part of a photograph created by plaintiff Andrea Blanch. The different result recently illuminates what uses courts now find to be “transformative.” According to Koons, his painting comments on “the ways in which some of our most basic appetites - for food, play, and sex - are mediated by popular images.” Blanch created a photograph entitled “Silk Sandals” as part of an editorial six-page article entitled “Gilt Trip” about metallic makeup that appeared in Allure Magazine. Koons admitted that he copied, scanned and superimposed the legs, feet and Gucci sandals from the photograph, and incorporated them into a collage, which he then gave to his assistants to make the painting “Niagara” at issue in this case. Blanch had never published or licensed the photograph after publication in Allure, and never licensed any of her photographs for use in other visual art works. According to the court, Koons’ use of a portion of her photograph did not “cause any harm to her career or upset any plans” for the photograph or for any other Blanch photographs. With collage art, not necessary to comment on the borrowed art, it was enough for the court that the artist was making a comment with the entire work.
Section 501-505
Copyright Lawsuits are expensive to defend.
In addition you may ruin a client relationship if the client receives a letter from a lawyer asking it to “cease and desist” all use
Advertising campaigns are expensive, and you don’t want to be embarrassed.
When a use is “enjoined” it is prohibited
Copyright does not require intent to infringe. You can infringe even if you did not know the work was infringing, for example a company hires a web designer who does not properly license images, the company that owns the website is liable.
There are different forms of infringement under copyright law.
Direct –Actual infringer who “copies” the work.
Contributory Infringement- This includes “downstream” infringers. Any company that acquires, publishes and/or distributes a “product” that includes an infringing work is liable.
Vicarious Infringement- covers those who should have supervised or been aware of the infringement.
The Copyright Act provides for individual liability as well as corporate liability, so corporate employees cannot hide behind the protection of limited liability.
An infringement is any violation of the exclusive rights of a creator [under Section 106], unless there is a defense such as fair use. You can make an infringing copy by direct copying or through copying substantial elements of a copyrighted work, in any medium. The list are examples of how a work can be infringed.
There are many different licensing models offering users a variety of rights
The alleged infringer must have actually seen the original photograph for an infringement to exist. The likelihood that the alleged infringer used the original photograph can demonstrated by showing the he or she had access to the original. If two photographers coincidently create a similar image, no infringement would exist.
FPG v Newsday. FPG brought and action against Newsday, one of the first cases filed involving the creation of an image using computer manipulation and software. The employee combined elements from various images to create a digital work. The case was settled in an amount that included attorney’s fees.
Left: photo by James Porto; Right: photo by Joseph Viesti- These images were cropped, flopped and combined but the original artist could still recognize his work as the main elements were retained
Ultimately a judge or jury will look at the images in question. There is no precise definition of what substantial similarity is. It is a question of fact as much as it is a question of law. How the image is perceived by a court is somewhat subjective, as is art itself. There is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.
A good example of how a court compares photographs is the recent case of Sahuc v. Tucker, [300 F.Supp.2d 461 (E.D.L.A. 2004)]. These are two photos of a well known gate located in the French Quarter of New Orleans, Louisiana – Jackson Square, a famous tourist spot. The one on the left is called Decatur Street Gate and was taken by Sahuc, while the one on the right is called Breaking Mist and was taken by Tucker. It was established that Tucker took his photograph after having viewed Decatur Street Gate in Sahuc's gallery, and acquiring the poster.
The appeals court found the images were not substantially similar. It noted that the framing of the cathedral is different, specifically, “Decatur Street Gate does not show the curb while “Breaking Mist” does. Also the lighting is different. “The banana leaves frame the shot, protruding more boldly than even the Cathedral in the background, which is muted by the fog. All objects appear to be perfectly placed by Sahuc: the urn, the Mediterranean palms, the gates, and the Cathedral.” Of course one is in black and white and the other is in color. The feeling was that these differences would be evident to an ordinary person. This is an example of a photograph of a common subject that is afforded less copyright protection than if it had been a photograph of an uncommon scene or a scene orchestrated by a photographers with models and props.
The photographer controls what image is recorded. It is the elements within the photographer’s control that are examined. When several elements of a photograph are the same as another photograph, it is difficult to say that it was a product of coincidence.
In cases in New York, elements that contribute to the “total concept and feel” of an original photograph have been found to be protectable.
Copyright does not protect ideas. What copyright protects is the particular way an idea is expressed. Photographs of naturally occurring subject or objects (nature) are less protected than posed photographs where photographer selects the elements. With natural objects, there must be some expression that do not naturally flow from the idea. For example two photos of the ocean will rarely be an infringement. The ocean never appears exactly the same way twice. The idea of the ocean is not copyrightable. This holds true for images that are more contrived as well. A product photographer cannot have monopoly over the idea of a bowl of cereal on a table with a spoon in it.
The photo on the left was taken by Penny Gentieu and the ones on the right were taken by other photographers of Getty Images, Inc.. Gentieu was a contributor to Getty Images who represented her baby photographs but also dealt with other photographers who created baby photographs. She sued for copyright infringement and breach of contract when she learned that other Getty Images photographers created similar images of babies against a white background. The court ruled that “Gentieu cannot claim a copyright in the idea of photographing naked or diapered babies or in any elements of expression that are intrinsic to that unprotected idea.” The only thing that would be protectable would be the “particular compositional elements of her expression that do not necessarily flow from the idea of photographing naked babies.” Close-ups of babies against a white background was not protected. The court found that the photographer did not add any other “protectable expression”. Consequently, other photographs of babies against a similar white background were not infringing.
Gentieu v. Getty Images, Inc. 255 F.Supp.2d 838
In Fournier v. Erickson, 202 F.Supp.2d 290 (S.D.N.Y. 2002), a photographer was in negotiation to use his image in a Microsoft Windows 2000 advertisement. When negotiations broke down, the ad agency hired a second photographer to recreate the image for the final ad. The advertisement was to illustrate a slogan stating, “the old rules of business no longer apply.” The agency attempted to have the case dismissed arguing that the second photo only borrowed the concept of a young businessman in casual dress walking down the street. While the court agreed that there was no protection to casual business dress but there was protection for some "protectable elements". These artistic elements are those mentioned, the posing of subjects, lighting, angle, selection of film and camera, all contribute to total concept and feel. Note the similarity in the backgrounds. Whether there was substantial similarity was a decision for the just not the judge. Once the court allows a jury to decide whether the images are substantially similar, rather than having the judge determine whether it is infringing or not early on in the case, the parties usually settle, After this decision, the parties reportedly settled the matter for a confidential sum.
Jack Leigh- Artist from Savannah created this image for the cover of the book. Although the statue was not integral to the work, it became the symbol of the best selling work. When the movie came out, Jack Leigh offered to license the image to Warner Brothers. Warner’s declined and instead recreated the photograph. Jack Leigh brought a copyright infringement claim and initially the claim was dismissed on summary judgment on the theory that there was nothing original about photographing a statue as the photographer had not made the sculpture. On appeal, the court determined that there could be copyrightable elements for a jury to decide whether an infringement occurred. These elements include the
lighting, shading, timing, angle, and film and the overall combination of elements in the photograph.
All of the photographs are taken from a low position, angled up slightly at the Bird Girl so that the contents of the bowls in her hands remain hidden. Hanging Spanish moss borders the tops of all the photographs except the soundtrack cover. The statue is close to centered in all of the pictures except in one newspaper advertisement for the movie, which places the Bird Girl in the left third of the frame. Light shines down and envelopes the statue in all of the images, leaving the surrounding cemetery in relative darkness. All of the photographs are monochromatic.The Spanish moss provides a top border to the images. The location of the statue and the lighting in the pictures together draw the viewer's attention. The lighting also lends a spiritual air to the Bird Girl. Finally, by keeping the contents of the Bird Girl's bowls hidden, the angle contributes to the mystery and symbolic meaning of the images.
The Bird Girl is in fact quite small. Mr. .Leigh’s image looks nothing like the “snapshots” taken by tourists or other photographers.
This case settled after the court found that a jury should decide whether the photographs were similar.
Court will deny a copyright claim if the similar elements result from a term called “Scenes a faire”-SCENES THAT MUST BE DONE
Kaplan used photograph as promo piece in Creative Black book. The second image was originally created for an advertisement for a camera lens, then became a stock image with The Stock Market, reworked for Fox Crain’s ad. Kaplan claimed “imitation”. While it was not denied that the image on the left was used as the idea for the image on the right, the court denied the photographer’s claim of copyright infringement. The idea of a businessman about to jump from a building was not protectable despite the similarities. The court went on to say that the similarities in the expression is a product only of the similarities in the idea. The Scenes a Faire doctrine embodies this principle. “Sequences of events necessarily resulting from the choice of setting or situation…are not protectable under US copyright law.
There was some interesting comments made by the court. For example the court considered a businessman contemplating a jump a “frequently portrayed metropolitan scene”. The court essentially thought that the attire was a “uniform” of a businessman and that this camera angle was the only angle that one would use if photographing a “leap”. The court emphasized the different “moods” of each photograph.
Mannion v Coors First photograph was created by photographer, the second was created by an another photographer by an advertising agency for Coors, and used the first photograph as inspiration. Coors argued that the idea of photographing “bling” against a sky was not protectable.
In this case, however, the images were just too close.
The court held that since the underlying work was orchestrated by the photographer, his copyright protected the overall aesthetic appeal of the photo. On a summary judgment motion, the court stated that whether copyrightable elements were infringed could not be decided and was a question for the jury. Again, the costs of a trial encourages a settlement.
Mannion v. Coors Brewing Co.377 F.Supp.2d 444S.D.N.Y.,2005.
Fat Boy Slim-Designer admitted that he was inspired by the famous photograph by Ernst Haas, “Sunset Silhouette”, but claimed the reshoot only copied the idea , not the copyrightable elements of the original shot. The attorney emphasized the difference in the starburst, the horizon line, etc. But the image clearly conjured up and competed with the original. Not original enough.
Ultimately there was a settlement that included monetary damages and agreement to change the credit language on new inventory to indicate that the cover was based on the image by Ernst Haas.
Another “derivative” album cover, example courtesy of Getty Images, Inc.
While its clearly a different horse, and the idea of a photographing a horse is not protectable under copyright law, the cropping of just the eye section against the black background is a copyrightable element. That is what is meant by the expression of the idea. This case settled as well.
Photo on left used as comp to create photo on right. Example of alleged unauthorized copying of “copyrightable” elements even though the model was different and shirt color was different.
Identify similar elements:
pose, composition, subjects-note that even the bench is the same and the hand with white dove is in same position, shirt draped in a similar manner
Ask audience-Do you think this is an infringement?
End result [Case settled, but company declared bankruptcy].
Derivative Works-Color image was well known, had long history of sales, created by photographer on location.
Second image was created later by another photographer in a studio, and not on location. Was licensed to a Canadian company and submitted for an award. It was subsequently published in a magazine based on the award and the initial photographer saw it. A settlement was entered into with the Canadian client that used it. The advertising agency that did the campaign for the client never even argued the copyright issue. Notice that the selection of the elements are the same, type of car, poses of children, age of children, similar in looks, similar cropping. Differences- color is sepia, more of car showing. But images have the same feel.
Infringing Copy?
Obvious similarity between 2 images
(Example provided courtesy of Getty Images, Inc.)
Another example provided courtesy of Getty Images, Inc.
Web sites often used by art directors for inspiration. Where inspiration copies “expression of idea”, infringement occurs. These are easy examples. Both images are posed, the choices made by photographer in composition, color and lighting are copied.
Another example courtesy of Getty Images Inc. User liked image but wanted model in less formal clothes (suit in original). Instead of asking, had the photograph recreated. Understand that it was settled when contacted by Getty Images, Inc..
In these obvious cases, a settlement is typical.
Example Courtesy of Masterfile Inc.
Again, liked the initial image but creative director had an idea to change the walls to computer boards. Should have asked for permission to create a derivative work.
Note position of hands on ledge. Nearly identical look of model (male, age, hair color, suit and tie)
Similar composition.
Case settled.
No one will ever concede that they made a mistake but will agree to settle.
Example Courtesy of Getty Images, Inc.
Initially denied that there was an infringement. Asserted that it was only the idea of watching a movie projected on a building. But some of the unique items in the picture gave it away.
Ask what the audience thinks it is?
Answer, each photograph has 3 pink flamingoes. While the “idea” of watching a movie outdoors may not be owned by one artists, the choices made by the first artist were copied. Same props, similar chairs, couch, wardrobe, etc.
Why photographers complain about these “copycat images? These photographs with multiple models and props are very expensive to produce. A photographer hopes to recoup production costs by stock license sales. If another photographer creates a copycat image that is widely used in an advertising campaign, the ability to license the original image is diminished. The photographer has suffered harm by the infringement.
Case settled with no admission of liability.
Example Courtesy of Getty Images, Inc. of a derivative use that was licensed properly. A & E liked the image and the composition but wanted its l A & E logo instead of the painting on the wall. It entered into a license with Getty Images to create a derivative image. Notice the similarity in couch, clothing, and hairstyles of the 2 models. This would clearly be an infringement if it was not licensed.
Example how copyright does not prevent use of works, only requires permission. It is not permissible to reshoot a photograph of a person in the same pose with a different model
Registration offers many benefits.
CMI-Discussed in later slide. Section 1202 provides damages in addition to copyright infringement damages for the intentional falsification, removal or alteration of copyright management information (CMI). CMI is defined as (1) The title and other information identifying the work, including the information set forth on a notice of copyright; (2) The name of, and other identifying information about, the author of a work; (3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. (4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.(6) Terms and conditions for use of the work.(7) Identifying numbers or symbols referring to such information or links to such information.(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
All statutory damages are in the court’s discretion. Usually bears some relationship to actual damages but with additional amounts (often a multiplier) to discourage infringement again or by others.
Attorney’s fee are not automatic, must ask the court for them if you are prevailing party. Warning, a defendant can be a prevailing party if it defeat a copyright claim or the damages sought by the plaintiff are unreasonable.
Plaintiff has the burden of proving that the defendant’s actions were willful
Section 504 (b) Actual damages
Section 504 (c) Statutory Damages
Can also seek injunctive relief, impoundment of goods, destruction of goods.
Criminal remedies are available as well to prevent piracy.
Summer 2007 Copyright Office anticipates that it will be able to offer online registration. There will be one form, and a reduced application fee. Deposit must be able to be submitted electronically as well.
Special handling fee is currently
Enforcement is Section 1202 has been difficult because of the burden that the violation of this section must have been made with reasonable grounds to know that it will induce infringement.
The section 1202 claims can be made in addition to copyright claims
Section 512(c) 1 of the DMCA offers limited liability to ISP’s who meet specific requirements
Must not have actual knowledge of infringing activity or aware of facts that from which infringing activity is apparent
Does not receive financial benefit attributable to the infringing activity, if it has the right and ability to control the activity
Upon notification responds expeditiously to remove or disable access
Cases have enforced this safe harbor to protect ISP’s from infringing activity of websites that the ISP hosts
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Sample letter on PACA website
Cases require strict adherence to 501(c) 3and the ISP is not considered to have notice of infringement if you fail to include all the necessary information
Usually very effective in getting content taken down in 24-48 hours
Burden is on copyright owners and representatives to identify content, problem is that it can be put up again,
ISP must implement and adopt a policy to provide for the termination of repeat infringers (Example Ebay has a written policy)
