Copyright or Copycat?


posted on 19th of september, 2007

“If I have seen further (than other men), it is by standing upon the shoulders of giants,” is a quote attributed to Isaac Newton in reference to his dependency on Galileo’s and Kepler’s work in physics and astronomy. There is certain nobility in giving credit to the great thinkers that went before to clear the mental pathways enabling clearer reflections in science or math. But there is no nobility in COPYING work. I often suggest photographer websites to illustrate how top professionals have handled different projects. It goes without saying, I would hope, that you are not meant to copy the images you find there; but to study them as examples of really good work in a particular genre against which you can measure your own.

© Sgame (Help)




How do the US courts decide if an image has been copied illegally? When should you concern yourself with whether or not your image is copying someone else’s? When you think someone has copied yours? I’m not an attorney and thus not qualified to give advice on copyright. Nevertheless, I’ll point out some general observations based on the excellent book, The Professional Photographer’s Legal Handbook by PACA attorney and my friend, Nancy Wolff. If these issues interest you, and they should, I highly recommend the book available on Amazon. If you have specific issues surrounding copyright, please see the references below.

Use common sense. Here’s an example. You are planning a trip to Florence, Italy. You review guidebooks and other sources to get a shot list for your trip. You note images of several lovely historical spots that you too would like to photograph. You might even want to photograph them in a similar way, during the same time of day from the same lookout. (You discover upon your arrival that the place the images were shot is readily available on the tour bus route.) You climb on the bus and set out to create your scenic shots of Florence. In the end you feel very successful because your images are as good as or better in your opinion as the ones in the guidebook and very closely resemble those very images. Have you violated anyone’s copyright? Probably not. All four of the images of the Duomo in Florence shown here are by different photographers.




For our second example let’s say that you see a very unique photo in an ad campaign. The image illustrates an unusual concept and does it in an extremely unique and distinctive fashion. You figure out how it’s done and create your own copy. Your image is so close that the average person would think it was almost an identical image on casual review. Now you have crossed a line. You are violating the copyright on the image. (Don’t be confused: its not because the image is in an ad but because you have so closely copied the execution of a very unique image.)




According to Nancy Wolff’s book the following is the two-part test used to determine if a work that looks similar to another could be violating the copyright of the first. First if you think your work has been copied, you will have to prove that the person copying the work had access to the work in the first place. Obviously if your work is posted on a public website such as Dreamstime, access is easy. The second requirement is that “the copied images must be substantially similar to the original.’ Nancy mentions the “Ordinary Observer Test”. This means that the images should seem substantially similar when viewed by the average person.

But wait! Don’t the images of Florence meet the two tests? Access to the images is available to anyone that looks at a copy of the guidebook and your photos look very much like the ones in the book. So why would it be very difficult to prove infringement? Because the subject is so common. I watched at least ten people photograph the Duomo in Florence out of the same window within 15 minutes of each other during a luncheon at CEPIC in June. Most of those photos will look very much alike because they are of a common subject that is photographed hundreds, if not thousands, of times annually from the same point of view.

You can’t copyright an idea but you can copyright the expression of that idea. The two images that return in a search for face/map are based on the same idea: a woman’s face and a world map. But to me the execution of the concept is different in each image. (But then remember I’m not an attorney; I’m also not judge nor jury.)

Be honest with yourself. You know when you are copying a distinctive image. Just don’t do it. Build on the images that you admire and create your own unique vision. And if someone is copying you, take him or her to task for it…but don’t bother the courts with it unless your image is truly unique.

References:
The ten copyright commandments


Everything you’ll ever need to know about US copyright and a silly cartoon show (skip the cartoon)

Comments (26)

Posted by Exiledphoto on October 24, 2007
One could argue that the face/map images are not alike because they are of:

1- A Map with a Face in it.
2- A Face with a Map in it.

Technically, they are different. As stated the expression of the idea is what is copyrighted, and not the idea itself. Not only are these different expressions, which they have to be because the idea behind them aren't even the same.
Posted by Paulus on October 15, 2007
You do not have to register anything to be recognised as the copyright owner. If you create an original work, you are the copyright holder. If you create a derivative work, you're not; so get permission first.

You will also need to get permission to use your derivative work in context. For instance, good luck getting permission from someone to use their (or your derivative) image on a porn, racist, discriminatory site or similar. You wouldn't get permission from me!

In the UK, we have Copyright and Intellectual Property Rights (I think you do in US, too). This means that you can sell (or give away, pledge, etc) the copyright so that someone else owns the work and can resell or relicense however they want, but because they never created the work, you would retain the IP on the work, so that the copyright holder couldn't undermine the original work or creator in any way, etc.

It's a complex area, but the best advice was given in the third paragraph - use common sense....if you use...(More)
Posted by Oculo on October 08, 2007
every eye shoot diferent in the same place, you could have infinity possibilities!!!
Posted by Webking on September 29, 2007
Interesting article on copyrights and photography.

Copyrighting a Photo?



Copyright Myths
Posted by Ellenboughn on September 27, 2007
Please refer to the links that I listed in my article. According to your understanding of the copyright law, there is no copyright protection for any image. You are incorrect. An idea cannot be copyrighted but the execution of that idea can be.
Posted by Chuckee on September 26, 2007
U.S. Copyright Law (Title 17 United States Code Section 102(b)) provides: "(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Unless there is other authority of which you are aware, Copyright does not extend to the idea used to create the image. Plain and simple, you can re-create another image, even to the point where they are identical, and you have not violated their copyright (unless you have actually used part or all of their image within yours). If the law were otherwise, then the first person to create a unique image would own the copyright and noone could ever re-create a similar image without violating copyright. This flies in the face of what we see in photography daily.

If you have some additional authority for your position on this issue, I...(More)
Posted by Ellenboughn on September 26, 2007
Oh Ok. I see this is a photo contest to see who can best exactly copy someone else's work. What happened to creativity? Students have often been sent to museums to try to copy the work of masters in order to better learn their techniques (to stand higher on their shoulders). I gather this is a similar exercise. I also assume that it is being done with 'Ursula's" permission. I also hope that you would not do so without such permission. Copying is copying and is a violation otherwise.
Posted by Ellenboughn on September 26, 2007
I must need another cup of coffee this morning but it looks to me like both the photographs that you have referenced below ARE by the same person: Ursula.
Posted by Chuckee on September 26, 2007
Actually, I did understand your meaning. It was my response that was unclear. My point was that I believe the general analysis is incorrect. The "unique" nature of an image has nothing to do with copyright. There is nothing in the law which prohibits someone from using another person's creative expression (i.e. image) and recreating it him or herself. Even if the images are identical in almost every detail, there has been no copyright violation. For example, THIS image and THIS image by two separate photographers are almost indistinguishable, yet, there is no copyright violation.
Posted by Ellenboughn on September 26, 2007
The analysis of the two face/map images as being potentially in violation of copyright because of their similarity and "uniqueness" is incorrect.
Chuckee: you didn't read my blog carefully. I said that the two images with a map/face were not in violation of each other's copyright as the execution was different in each case. I said they were NOT potentially in violation of copyright. Sorry if that wasn't clear. And I say again, "I am not an attorney nor judge nor jury. Just giving my opinion based on business experience."
Posted by Chuckee on September 25, 2007
I don't ever post here, but feel I need to in this case. The analysis of the two face/map images as being potentially in violation of copyright because of their similarity and "uniqueness" is incorrect. A photographer can freely re-create an image which is "unique" or otherwise without violating copyright, even if "the average person would think it was almost an identical image on casual review".
Posted by Ellenboughn on September 20, 2007
It sometimes happens that a designer or art buyer or art director will fall in love with an image but not be able to locate the photographer, not have the budget for licensing or shooting the image. In this case they might ask you to recreat it. This is very thin ice. You can 'copy' the idea but not the execution. So you can shoot an image that 'says' the same thing but not in the same way...as the face/map images in the blog post.
Posted by Tupungato on September 20, 2007
Sometimes there is not so much choice. There is one specific spot, from which everyone takes photos and everyone has more-less the same shots. Search for "Peyto Lake".
Posted by Littlemacproductions on September 20, 2007
I have seen posts in the past, regarding a request from a designer. The request was of an image they saw on a more expensive site. They wanted 'one of us' to recreate this image and post. I really can't remember if it was accomplished or not, but it certainly fits into this discussion.
Posted by Tweakhp on September 19, 2007
interesting and informative article...thanks a lot
Posted by Thefinalmiracle on September 19, 2007
Copyrights are important but the laws and their implications are very weak in standards. As far as I know from the music scene and being the CEO of a music label, 1 out of 5000 cases of copyright cases reaches settlement stage regardless of the country and the law.
Posted by Tracytmlpub on September 19, 2007
For all of us in the creative field, copyright laws are important to know. Thanks for the refresher course!
Posted by Ellenboughn on September 19, 2007
You are prohibited from using two images from Dreamstime to create a single new image. The copyright owners control the right to modify the work (derivative works). I quote from Wolff's book: "The copyright owner holds the exclusive right to modify the original work. This includes the right to make a painting from a photograph or a collage from several different photographs or images....Manipulating and combining images in Photoshop or similar computer programs without permission is an example of an unauthorized derivative use."
Posted by Maigi on September 19, 2007
Huge thanks, Ellen!
Posted by Ellenboughn on September 19, 2007
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions. There are two principal international copyright conventions, the Berne Union for the Protection of Literary and Artistic Property (very heavy reading) and the Universal Copyright Convention (UCC).Information specific to Estonia:
Posted by Fotogeek on September 19, 2007
Ellen, can I use two pictures bought from DT to create another picture that will show a concept or convey a message? Right now I have an idea, but unfortunately not the images and no chance to get them any time soon. The final image would be a composite image using a photo editor.
Posted by Maigi on September 19, 2007
So, is it so that every country has its own ways and institutions to do that or is there some international organisations? Sorry, if my questions are stupid, I can't find any information about it in Estonian.
Posted by Ellenboughn on September 19, 2007
Maigi: your work is copyrighted the minute you create it but registering the work makes it much easier and the financial rewards greater if the work has been registered prior to or within the first publication.
Posted by Kenneystudios on September 19, 2007
Great advice and examples.
Posted by Charon on September 19, 2007
Copyright is like human rights, I thought.
Posted by Maigi on September 19, 2007
Hmm... for a second I read the title - Copyright or Copyleft :)
Thank you for the article! I read from another forum, that if you want to protect your copyright you need to register your images. But isn't it true that you have the copyright from the moment you created your work. Why then to register?



Comments (26)

This article has been read 3821 times. 1 readers have found this article useful.
Photo credits: Asier Villafranca, Kevin Fletcher, Cristina Mihailescu, Stefan Hermans, Dawn Hudson, Ronfromyork, Sgame, Typhoonski.

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