Homage Is Expensive: Rihanna Pays Up To Settle Photographer's Lawsuit

from the idea/expression? dept

We've been covering the lawsuit filed by photographer Dave LaChapelle because the video for Rihanna's song S&M appeared to mimic some of the ideas found in some of his photographs:
Of course, we thought that there was an idea/expression dichotomy in copyright law that says you can't copyright the idea -- just the expression. So we thought that a judge would make quick work of the case. Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth, and the case could move forward. This was reasonably troubling for lots of folks -- though certainly for Rihanna.

So it came as little surprise that Rihanna has "settled" the lawsuit with LaChapelle, meaning that she gave him a bunch of cash to go away. The lesson in all of this? Homage is expensive. You're best off not bothering.


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    DandonTRJ (profile), Oct 21st, 2011 @ 2:44pm

    I wouldn't call it a myth so much as I'd say the judge gave LaChappelle the benefit of the doubt on the preliminary motions, which courts generally do when deciding whether to chuck at case at the outset. There's every chance Rihanna could have still shown an idea/expression divide at a full trial, but of course that would have been more expensive [and she probably wouldn't have been able to collect attorney's fees under Section 505, since the judge basically told the parties that LaChappelle's claim wasn't objectively frivolous]. If you're saying the idea/expression dichotomy should be beefed up to cut off claims more frequently at the summary judgment or motion to dismiss level, I might agree with you, but I wouldn't say it's nonexistent for lack of such power.

     

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    Anonymous Coward, Oct 21st, 2011 @ 2:52pm

    Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth

    This really is shoddy logic, and it makes you look bad to spout nonsense like this. Even if you think that the idea/expression dichotomy isn't being recognized properly in this case (an argument that isn't unreasonable, though I disagree with you on it), that in no way proves that the dichotomy doesn't exist generally. Shall I cite caselaw for you where the court didn't find infringement because it found that only unprotectable ideas had been copied (and not expression)? You know damn well that courts often recognize the dichotomy, so pretending that it is a "total and complete myth" is really idiotic. You make it hard to take you seriously. When I see you FUDing out stuff like this that I know about, I just assume you're FUDing out the stuff I don't know about. You don't need to exaggerate (and lie) to make your points, Mike.

     

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    out_of_the_blue, Oct 21st, 2011 @ 3:07pm

    The "idea/expression dichotomy" was a favorite with Steve Jobs...

    http://finance.yahoo.com/news/Jobs-questioned-authority-all-apf-1873950574.html?x=0

    "I don't want your money. If you offer me $5 billion, I won't want it. I've got plenty of money. I want you to stop using our ideas in Android, that's all I want."

    ------------

    AND, HA! Progress on the Mike front. So now you agree with me that one SHOULD NOT COPY: "The lesson in all of this? Homage is expensive. You're best off not bothering."

    BUT you SEEM to be saying that was your advice all along! Do I mistake this from your first piece?:
    "Remember, copyright is only supposed to cover the specific expression, and not the idea. In all of these examples, it looks like the specific expression is quite different, even if the idea is similar."

    When you above write:
    "Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth, and the case could move forward."

    WHICH IS IT, MIKE? Your statements are nearly exact opposites!

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:12pm

    I think if a piece of artwork is well known by the general public and easily recongnized as such there is a certain amount of cross-promotion. But I had never heard of this artist and while I don't consider myself to be an art expert, I have been to some galleries in the past.

    The fact that so many of the scenes from the video are remarkably similar would present a problem, at what point does an "homage" become a knock-off? How closely do the visuals need to be before you just say - she clearly stole his ideas and used them as her own.

    If you are in the creative arts business, you need to be creative, and come up with your own ideas. If you are going to borrow ideas at least get the permission of the person who you are ripping off.

    If she had asked, I bet he would have let her use the ideas if she mentioned his name, and he might even have collaborated with her, producing something far more interesting and original.

    Furthermore, "homage" can actually harm the original artist if the quality is subpar and so like the style of the original artist. People (fans) might assume that the artist did collaborate on the video and find the implementation so distatefull and/or poorly done that it harms the reputation of the original artist.

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:15pm

    Re:

    The raw material for new culture is, in fact, old culture.

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:16pm

    Settled Too Early

    Rhianna settled too early. Allowing a case to move forward does not mean that the plaintiff will necessarily win. She should have done the rest of us a favor by going to trial and winning, thereby establishing the expression/idea dichotomy much more firmly. As it is, she has rewarded bad behavior and given future bad actors ammunition.

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:20pm

    Re: Settled Too Early

    Oops. Spelt Rihanna wrong. Sorry babe.

     

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    Mike Masnick (profile), Oct 21st, 2011 @ 3:25pm

    Re:

    This really is shoddy logic, and it makes you look bad to spout nonsense like this. Even if you think that the idea/expression dichotomy isn't being recognized properly in this case (an argument that isn't unreasonable, though I disagree with you on it), that in no way proves that the dichotomy doesn't exist generally.

    Perhaps I wasn't clear. If the idea/expression dichotomy is so arbitrary that this doesn't apply here, then it's mythical. It may exist for some judges, but not for others, and to me that makes the idea that it's some sort of bright line protection for free expression a total myth.

     

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    freak (profile), Oct 21st, 2011 @ 3:27pm

    I, for one, don't think Mike is exaggerating too much. In this case, I think he's right that this court in particular doesn't recognize the idea/expression dichotomy.

    I mean, look at these pictures. Any BDSM photographer could look over his/her portfolio and find pictures like these. Some photographers would have much, much closer matches.
    These ideas are common in BDSM. We seem to have: Person walking someone like a dog, woman's face in latex mask, and people in a garish room.

    IF LaChapelle can say at all that Rihanna was infringing here, then LaChapelle is CLEARLY, beyond a doubt, infringing on The Iron Cross. Or perhaps something not currently in the public domain, I'll bet Bettie Page has a few photos similar to at least the 1st pair of photos. Sweet Gwendoline, maybe, but I'm not sure?

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:29pm

    So is performing bdsm copyrighted now or not?

     

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    freak (profile), Oct 21st, 2011 @ 3:31pm

    Re:

    With mike's clarification above, "If the idea/expression dichotomy is so arbitrary that this doesn't apply here, then [...] that makes the idea that it's some sort of bright line protection for free expression a total myth.", I totally agree with him.


    I guess I play Devil's Advocate, and suppose the judge just isn't that familiar with BDSM, and thinks that the ideas are very similar, but then we still have that the photographs aren't copying the expression at all. Look at the 2nd pair of photos, not remotely similar past "Shot of woman's face wearing a latex mask". Heck, one of them isn't even a mask. You couldn't copyright "Shot of a woman wearing a hat", could you?

     

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    freak (profile), Oct 21st, 2011 @ 3:32pm

    Re:

    The case was settled, so no judgment was made, so the answer is: we don't know yet, but LaChapelle has a better case now when he goes after someone else.

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:39pm

    Lol

    "Of course, we thought that there was an idea/expression dichotomy in copyright law that says you can't copyright the idea -- just the expression. So we thought that a judge would make quick work of the case. Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth, and the case could move forward."

    In other words, "I was wrong about what the idea/expression dichotomy means, therefore it does not exist."

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:41pm

    Re: Re:

    "If the idea/expression dichotomy is so arbitrary that this doesn't apply here, then it's mythical."

    Not much better. It's like saying "if starting at your own 35 yard line isn't good field position, then good field position is a myth."

    No, you just have a different idea of what constitutes "good field position" than others. This "my way or the highway" attitude is petulant.

     

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    Anonymous Coward, Oct 21st, 2011 @ 3:44pm

    Re: Re:

    Perhaps I wasn't clear. If the idea/expression dichotomy is so arbitrary that this doesn't apply here, then it's mythical.

    But that's not logical. Just because you disagree with its application in this case or this context, it does not follow that it isn't (or can't be) applied properly in other cases or contexts. I've noticed a tendency on your part to erroneously make generalizations like this. Would you agree that cases exist where the dichotomy is properly recognized? If so, then your position that the dichotomy is "dead" or "mythical" is irreconcilable.

    I'm sure you're aware of the reasoning that courts apply in cases like this (with nonliteral copying). Under that reasoning, it is indeed expression that is being protected, not ideas. If you disagree with that reasoning, then tell us why. Just declaring that the whole thing is a myth in all contexts doesn't advance the debate. It's just anti-copyright FUD talking points without any analysis. Tell us where you'd draw the line, and why. Tell us what the court's arguments are, and then give us your counterarguments. That would be useful. This, though, is just FUD.

    It may exist for some judges, but not for others, and to me that makes the idea that it's some sort of bright line protection for free expression a total myth.

    It's not a bright line. It never has been. The problem is that it's impossible to say exactly where the line is between idea and expression. It has to be decided on a case by case basis under the totality of the circumstances. That doesn't mean that there is no line. If you disagree with where the judge drew the line in this case, then simply tell us why. But I think you should recognize that people you disagree with, like the judge here, are not necessarily being unreasonable. I think you're wrong in this case, but I don't think you're being unreasonable.

     

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    Anonymous Coward, Oct 21st, 2011 @ 4:02pm

    Re:

    In other words, "I was wrong about what the idea/expression dichotomy means, therefore it does not exist."

    Either he disagrees with the law, or he disagrees with the judge's application of the law. One can't tell what Mike really thinks, because he hasn't actually articulated any arguments. File this under "FUD talking points."

     

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    DMNTD, Oct 21st, 2011 @ 4:47pm

    Re:

    "and come up with your own ideas" Fail logic, everything around us is what's inside us. NO ONE comes up with "their own ideas" It's ALL a matter of EXPRESSION of something you learned from some kind of matter around you. TO me that's mikes point when it comes down to this case.

    I do think she should have pushed but I am a broke bitch and I LOL at this situation and can see how useless this case is. Copycats can be bothersome but wild colors and men on leashes and some kind of latex thrown in with old ass clothes were not done in this situation first on any level..how a joke of it all really.

     

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    DCX2, Oct 21st, 2011 @ 5:56pm

    Total BS

    The differences are far greater than their similarities.

    The first image involves a mostly clothed man vs mostly naked. One woman holds a cigarette, one woman holds a whip. One is in front of a home with a garage in the background, one is in front of a Taj Mahal-looking building. One woman wears a hat, one does not. One woman has boots, one has heels. One has no grass, one does. One woman wears beige, one woman wears black.

    In the second image, one woman's face can be seen, one can't. One woman has blue eyeshadow, one has no eyeshadow. One is singing, another is holding something out on her tongue. One is looking at the camera, one is looking away. One has pink lipstick, one has red lipstick.

    And that third pic? About the only similarity is the pink and white wallpaper.

     

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    The Devil's Coachman (profile), Oct 21st, 2011 @ 6:13pm

    Is it just me?

    Or do both photographers suck equally? I mean, I don't think that sucking is a civil matter, and since they both suck, this should never have reached a court. Both of them should be killed, due to there astonishing lack of talent, and their pretense that they actually have some. They suck! Sucking should not have a day in court. The people that think this is art - they suck, too. Kill all the suckers. Kill them now. Kill them without remorse. There. Problem solved!

     

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    Mitch Featherston, Oct 21st, 2011 @ 6:40pm

    Can you say "chilling effect"?

    This is unbelievable. We live in a twisted world.

     

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    Anonymous Coward, Oct 21st, 2011 @ 10:09pm

    Re:

    Shall we cite and equal number of caselaw proving that ideas were protected instead of their pure expressions?

    It goes way back, ever since that judge allowed for non-literal-copies to be considered infringement.

    Or the "Doctrine of Equivalents" that uses a "holistic" approach to decide the cases?

    Those things in a matter of fact excised the certainties of any reliable way to define what is or is not and idea or expression, since you can express the same thing in numerous ways and they all will be the same thing those doctrines make it possible for the legal system to interpret it in any way it sees fit which is open to the bias of the one doing the judging at the moment it happens.

    So yes everybody knows that idea/expression dichotomy is pretty much just dressing window for the fact that there is no such thing in modern law, it just depends on who gets to decide what is copying or what is not.

     

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    Anonymous Coward, Oct 21st, 2011 @ 10:13pm

    Re: Settled Too Early

    No fool will be going any further if they can help it.
    Rhianna could have ended up on the soup line for it, just look at what they did to Jammie Thomas Rasset, maybe Oprah could have afford it.

     

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    Anonymous Coward, Oct 21st, 2011 @ 10:28pm

    Re:

    Since there is seldom direct evidence of copying (witnesses who actually saw the defendant copy the work, for instance), a copyright owner may prove copying through circumstantial evidence establishing that the defendant had access to the original work and that the two works are substantially similar. Other indications of copying, such as the existence of common errors, have also been accepted as evidence of infringement

    Source:
    6 See, e.g., Rockford Map Publishers, Inc. v. Directory Serv. Co., 224 U.S.P.Q. 851 (C.D. Ill. 1984), aff'd, 768 F.2d 145 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); Sub-Contractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F. Supp. 507, 509 (S.D.N.Y. 1946). It is common for publishers of directories and other compilations to deliberately insert mistakes into the work (such as periodically adding a fictitious name, address and phone number in a telephone directory) to detect and help establish copying. See 2 H. ABRAMS, THE LAW OF COPYRIGHT 14.02[B][3][c], at 14-19 to 20 (1993).

    The similarity between the two works need not be literal (i.e., phrases, sentences or paragraphs need not be copied verbatim); substantial similarity may be found even if none of the words or brush strokes or musical notes are identical.

    Source:
    See Donald v. Zack Meyer's T.V. Sales & Service, 426 F.2d 1027, 1030 (5th Cir. 1970) ("paraphrasing is equivalent to outright copying"), cert. denied, 400 U.S. 992 (1971); Davis v. E.I. DuPont de Nemours & Co., 240 F. Supp. 612, 621 (S.D.N.Y. 1965) ("paraphrasing is tantamount to copying in copyright law"); see generally 3 NIMMER ON COPYRIGHT 13.03[A] at 13-28 to 13-58 (1993). Nimmer identifies two bases upon which courts impose liability for less than 100 percent verbatim copying: (1) "fragmented literal similarity" (where words, lines or paragraphs are copied virtually word-for-word, although not necessarily verbatim) and (2) "comprehensive nonliteral similarity" (where the "fundamental essence or structure" of a work is copied); see also P. GOLDSTEIN, COPYRIGHT 7.2.1 at 13-17 (1989). Goldstein identifies three types of similarity: (1) where the infringing work "tracks" the original work "in every detail," (2) "striking similarity" (where a brief portion of both works is "so idiosyncratic in its treatment as to preclude coincidence") and (3) similarities that "lie beneath the surface" of the works ("[i]ncident and characterization in literature, composition and form in art, and rhythm, harmony and musical phrases in musical composition"). Id. at 13 (citations omitted).

     

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    Anonymous Coward, Oct 21st, 2011 @ 10:34pm

    Re: Re:

    When you don't need to show a literal copy have occurred what you have is a place where bias can be introduced and liberal interpretations of the law become common practice.

    There is no idea/expression dichotomy, because there is no rule forcing anybody to fallow that.

    What is the "de minimis" for something to be considered "substantial", you can go ask a thousand judges and each and everyone one of them will have a different point of view, then when asked to opine on others rulings they will all agree that it was in their capacity to rule how they did it because each and everyone of them are only certain that nobody can pin point the exact threshold.

     

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    Anonymous Coward, Oct 21st, 2011 @ 10:36pm

    Maybe we should call the idea/dichotomy fantasy the "rule by bias doctrine".

     

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    Anonymous Coward, Oct 21st, 2011 @ 11:03pm

    Re: Re: Re:

    The only real FUD is one trying to make something that only happens and thus exists when one exercises his believe in it is something that is real.

    I could dress like Santa Claus does it make it more real?
    Does Santa becomes more real if people believe and others don't?

    How can there be a dichotomy if nobody knows where the line is?

    How can there be a dichotomy if everyone gets to define where that line is?

    How is there a dichotomy where there is no lines to clearly define one from the other?

    Because you believe in it, it doesn't make it real.

    We don't have a dichotomy we have pluchotomy.

     

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    Anonymous Coward, Oct 21st, 2011 @ 11:30pm

    Re: Re: Re:

    Translation, since nobody can show what the dichotomy is all judges are right and I am trying to BS everyone confusing them about what dichotomy is.

    Dichotomy:
    noun, plural -mies.
    1.
    division into two parts, kinds, etc.; subdivision into halves or pairs.
    2.
    division into two mutually exclusive, opposed, or contradictory groups: a dichotomy between thought and action.
    3.
    Botany. a mode of branching by constant forking, as in some stems, in veins of leaves, etc.
    4.
    Astronomy. the phase of the moon or of an inferior planet when half of its disk is visible.


    Darkness and light are a dichotomy, dry and wet are a dichotomy, idea and expression are a dichotomy, legal idea and expression though is not, since the line that divided them have been blurred by things like non-literal-copying that in fact removed the line between them and I dare you find consensus on where that line is since nobody can define what constitutes "substantial similarities" to begin with and after a hundred years there is no consensus of what that should be it keeps being pushed back and forth, that should be clear by now that the law is broken, that the traditional way of looking at it is flawed and should be revised urgently to take away the uncertainties at the cost of precision if that may be the case, because it is not functional and it hasn't been for a couple of hundred years now.

     

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    The eejit (profile), Oct 22nd, 2011 @ 2:28am

    Re: The "idea/expression dichotomy" was a favorite with Steve Jobs...

    Way to misrepresent. Copying is cheap, yes, but then consider: why, for example, did the Christian faith adopt Pagan symbology in order to progress? Why, for example, did Dickens obtain his ideas from Darwin et al? Why, for example, is he Chronicles of Narnia copying a religious treatise? Why, for example, did Star Wars inspire so many people?

     

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    Greevar (profile), Oct 22nd, 2011 @ 6:52am

    Re: Re: Re:

    That whole comment is completely false and dishonest.

     

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    Anonymous Coward, Oct 22nd, 2011 @ 7:12am

    Re: Re:

    Shall we cite and equal number of caselaw proving that ideas were protected instead of their pure expressions?

    At best you could cite cases where you have a colorable argument that idea was erroneously protected. And, of course, there's a colorable counterargument that it was expression being protected (an argument that won the day, no less). This does not prove the absence of the dichotomy. It only proves that your reasonable opinion differs from somebody else's reasonable opinion. Answer me this, in those cases you're thinking of, did the judge make a reversible error? I doubt it.

    All I can say is that with stuff like this, where there isn't a bright-line rule (and, as I'm sure you're aware, there can never be one), you anti-copyright guys sure love to pounce in with the FUD.

    It goes way back, ever since that judge allowed for non-literal-copies to be considered infringement.

    But there is good reason for allowing nonliteral copies to be considered infringing. And it has nothing to do with ideas being protected. They're not. It's still expression being protected. You may disagree with it, but current doctrine is logical and reasonable.

    I think that's what Mike's beef is here: He thinks that nonliteral copying shouldn't be infringing. That's a reasonable policy position to have. But that's not the law as it now exists (and the law is also reasonable). It's perplexing though that Mike thought this judge was going to throw out this case on the motion to dismiss. Considering the state of the law, and the fact that is was a pre-trial motion (with inferences favoring the plaintiff), the denial of that motion is not surprising. The fact that a whole slew of images were mimicked makes a difference too. Mimic one and maybe it's coincidence. Mimic the whole thing and obviously there's copying.

    Heck, even Mike now admits that it's an "homage." That concession practically answers the question of whether the motion was properly denied. I don't mind if Mike thinks that this shouldn't possibly be infringing. But he shouldn't frame this as the judge getting it wrong. He didn't. There is no reversible error here. Mike's logic seems to be that since the judge didn't apply the law as it doesn't exist, then he got it wrong. But that's not what judges do--they apply the law as it does exist. The better way to frame it is that the judge did his job well, but it's just the law that sucks. Or maybe Mike thinks the judge misapplied the law, had his facts wrong, or gave little weight to some policy consideration. It's hard to say since he didn't really say.

    Of course, making nonliteral copying non-infringement as a matter of law just runs you into trouble. Why do you think that judges started considering nonliteral infringement to be infringing in the first place? Because there was a need.

    Let's do a thought experiment: You take a photograph. It's the most beautiful photo in the world--worth a million bucks. I misappropriate the photo, change one single pixel, and then proceed to market the heck out of it. I happen to be well-connected, so I'm able to make millions off of it before you can even get an SBA loan to get started. In fact, everyone in the world who wants to buy it has already bought it from me. Now, since I changed one single pixel, under Mike's view, that's not infringement. Infringement must be literal. But that hardly seems fair. And if you accept that changing one pixel is substantially similar, and therefore infringing, then what about two pixels? Ten pixels? A thousand? You can see how this would turn into a case-by-case analysis really quickly. You can't say "if X pixels, then infringement," since the number of pixels would be different for each work.

    See what I'm getting at?

    Or the "Doctrine of Equivalents" that uses a "holistic" approach to decide the cases?

    And does so because it's impossible to have a workable bright-line rule. Some things lend themselves to analysis by guideposts, factors, balancing tests, totalities, etc. You see this is every single branch of law. It's anti-copyright opportunism to whine about it here. The correct view is to acknowledge that such analyses are common, needed, and reasonable.

    Those things in a matter of fact excised the certainties of any reliable way to define what is or is not and idea or expression, since you can express the same thing in numerous ways and they all will be the same thing those doctrines make it possible for the legal system to interpret it in any way it sees fit which is open to the bias of the one doing the judging at the moment it happens.

    If you attempt to push the line between idea and expression, then you certainly run the risk that some judge will disagree with you about where the line is drawn. Again, this is just FUD you could say about case-by-case analysis in general. When it's copyright law and it's not black-and-white, the anti-copyright crowd loves to FUD it out all they can. Judges are biased, but they supposedly try to not be. That's how the legal system works in general, and this fact permeates all litigation, no matter what's at stake. Whining about it here is silly.

    So yes everybody knows that idea/expression dichotomy is pretty much just dressing window for the fact that there is no such thing in modern law, it just depends on who gets to decide what is copying or what is not.

    That's just not true. The judge in this case identified several expressive elements that were copied. The analysis was quite thorough and reasoned. And it's important to keep in mind the procedural posture here--it was a pre-trial motion to dismiss. The judge didn't actually rule that this was infringing, just that it reasonably could be under the law if the plaintiff is given the benefit of the doubt.

    You may disagree with the judge here, but that doesn't mean there is no dichotomy. You may disagree with the law, but that doesn't mean the law doesn't reasonably recognize that expressive elements can still be copied in nonliteral copies. The whole notion that since there's no bright-line rule, then there is no dichotomy is just shoddy logic. And all this boils down to is more anti-copyright FUD.

     

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    Anonymous Coward, Oct 22nd, 2011 @ 7:22am

    Re: Re: Re:

    When you don't need to show a literal copy have occurred what you have is a place where bias can be introduced and liberal interpretations of the law become common practice.

    And this is true of all analysis in general, even analysis that purports to be purely objective. Whining about it in this context is, well, just whining.

    There is no idea/expression dichotomy, because there is no rule forcing anybody to fallow that.

    There are tests with objective criteria that judges use in their analyses. Just because it's not bright-line doesn't mean it's totally subjective and non-existent. You're just FUDing this out.

    What is the "de minimis" for something to be considered "substantial", you can go ask a thousand judges and each and everyone one of them will have a different point of view, then when asked to opine on others rulings they will all agree that it was in their capacity to rule how they did it because each and everyone of them are only certain that nobody can pin point the exact threshold.

    I doubt that's true, but I obviously can't prove it. I doubt there's been any studies. You can't prove it either.

    Tell me this: What's your solution? Say I write a book about a young wizard who happens to be a lot like Harry Potter. How could you draft the law so that every judge on this earth would know when my character infringes on Rowling's character and when it doesn't infringe? The answer, I hope you'll admit, is that such a law is impossible.

     

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  32.  
    identicon
    Anonymous Coward, Oct 22nd, 2011 @ 7:25am

    Re:

    Maybe we should call the idea/dichotomy fantasy the "rule by bias doctrine".

    Only if you were an anti-copyright FUDster. Can you give an example of any law that gets applied without a lick of bias? Of course not.

     

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  33.  
    identicon
    abc gum, Oct 22nd, 2011 @ 7:28am

    No wonder rich hollywood hipsters like unique clothing.
    Drag them to court if they wear anything similar to yours.

     

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  34.  
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    Anonymous Coward, Oct 22nd, 2011 @ 7:34am

    Re: Total BS

    You should look up and read the judge's analysis. There's a lot more to it than that.

     

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  35.  
    identicon
    Anonymous Coward, Oct 22nd, 2011 @ 7:51am

    Re: Re: Re: Re:

    Your premise is false. Just because there isn't perfect consensus about where to draw the line in a particular case, it does not follow that the dichotomy is a myth. Some things just aren't black and white--they can't be black and white.

    A hypo: Let's say the U.S. decides to blow up Libya. I think it's a good idea, and you think it's a bad idea. We're split 50-50. In fact, every Article III judge in the U.S. is polled, and all apply a balancing test and the same definition of good idea. They split 50-50 on whether blowing up Libya is a good idea. So here we have the opposite of a consensus. We're split 50-50 and the judges are split 50-50. Does that prove that the dichotomy between good idea and bad idea doesn't exist? Of course not. It just proves that reasonable minds might differ as to whether this is a good idea.

    The key is to remember that no bright-line rule is possible in this case, just like no bright-line rule exists for determining whether blowing up Libya is a good idea is possible--even if we're all applying the same definition of good idea and the same facts to the same balancing test, we can arrive at divergent results. This is just the nature of the beast. But a decision has to be made--the judge has to decide one way or the other when a case lands on the docket. Just like the President would have decide whether or not to blow up Libya should they attack us.

    The fact is, the world just isn't always black and white and we balance things all the time. And life goes on. If you read the judge's analysis in this case, you can see that he looked at the matter objectively, identifying what the expressive elements were that were protectable and copied. It's not a totally subjective, which-side-of-the-bed-did-the-judge-wake-up-that-day kind of thing.

     

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  36.  
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    Anonymous Coward, Oct 22nd, 2011 @ 10:17am

    Re: Re:

    Just so long as the judges and the lawyers get to determine the extent of the arts. That's the important part.

     

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  37.  
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    Anonymous Coward, Oct 22nd, 2011 @ 10:54am

    Re: Re: Re:

    And yet the arts are thriving, even in this supposedly restrictive and permissive culture and even under our "draconian" laws. Give me a break with all the anti-copyright whining.

     

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  38.  
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    Mr. Grunt, Oct 22nd, 2011 @ 12:29pm

    Fuck the bitch.

    Yeah well, fuck Rihanna. I have a letter here from Universal Music that demands a 'settlement' of 1200 EUR because her tracks were downloaded over an IP addres that was apparently associated with undersigned. Germany is truly becoming a facist country again.

     

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  39.  
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    Anonymous Coward, Oct 22nd, 2011 @ 12:52pm

    Re: Re: Re: Re:

    That whole comment is completely false and dishonest.

    Hardly. I think the comment nails it. Mike's argument is silly: since Mike doesn't like where the judge drew the line, then Mike thinks that proves that the line must not really exist. That makes no sense. Frankly, it's idiotic. And it's certainly petulant. That comment nailed it.

     

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  40.  
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    Andrew D. Todd, Oct 22nd, 2011 @ 3:39pm

    How To Read a Picture

    I looked at the pictures the way an art historian would, and analyzed them. To an illiterate, all books look pretty much alike. In the same way, there is a certain level of non-understanding, in which people can confuse quite different pictures. Both parties' pictures are packed full of conventional symbols, in an essentially heraldic fashion. In heraldry, the organization of subordinate images matters as much as the order of words in a sentence. It is fairly apparent that Judge Shira A. Scheindlin has no real understanding of how to "read" a work of art.

    The "man on leash" picture:

    The LaChapelle picture was probably photoshopped. Its background shows an official building in "minaret classical," which was usually the result of an eighteenth-century Italian architect arriving in either Russia or Turkey, and building according to his interpretation of the local traditions. In fact, the building is the Brighton Pavilion, King George IV's public announcement that he was not only King of England, but sovereign of India as well. It would probably be easier to photoshop the Brighton Pavilion than to stage a risque photo session on its grounds. Prince Charles would probably not like the idea. In the picture, the man is dressed in a sex-show burlesque of a policeman's uniform. The man is not, however, a "bobby," so I don't thing the artist intended a reference to the British Government. It was probably a case of borrowing an image from a postcard, without thinking about the specific political implications. The woman is got up as a "leather" dominatrice. So the picture is to be understood as the woman posing a challenge to the state by "hag-riding" the state's representative in plain view of the state's public offices. They sent out a policeman to arrest the woman for outraging public morals, and her response, after reducing the policeman to slavery, was to return him in chains, a gesture of supreme contempt.

    The Rihanna picture shows something quite different. The background is a private dwelling house, of traditional American design. The man is dressed in a uniform which is like no police or military uniform one ever saw. There are "uniform colors," viz. bright "British Grenadiers" red (which is rare), blue, and various shades of green, gray, and brown. The man's uniform falls outside of this color range. Rather it is the uniform of a circus or fairground attendant, or perhaps a hotel bellboy, designed to avoid infringing on the sartorial prerogative of state servants. Someone who sells cotton candy should never be mistaken for a policeman, even by foreigners who cannot know the specific uniform colors. It is understood that the bellboy's employers are capitalists, and if they had understood that it was a male prostitute that the woman wanted, of course they would have sent one. They have no strenuous objection to the woman using the bellboy for that purpose. The woman is dressed in an "inadvertently" revealing fashion, her stocking-tops being visible under a thin dress. The woman is not posing a challenge to any authority-- she is merely luxuriating in her role as a consumer, including the consumption of purchased slave-boys.

    The two pictures thus express very different ideas.

    The women in room picture:

    In the La Chappelle picture, the walls, door etc. are not merely pink and white. The wallpaper is vertical pink and white candy-cane stripes, with a floral overlay, and the baseboards and door are painted pink to match. It is in fact a conventionally designed little girl's bedroom. Similar motifs are also found in little girls' clothes, at least as far back as the nineteenth-century painter Mary Cassatt. The furniture is a dresser, with mirror, of "modern" design and a "chaise lounge," a kind of sofa which is designed to double as a bed. One of the women is riding a broom, the conventional symbol and insignia of a witch. Another is lying on the chaise lounge, with her legs apart-- ready for action. The man is swathed in tape in such a way as to give him the appearance of a zebra. That puts him in the category of "non-dangerous trophy animal." A lion or a tiger, for example, is dangerous, and will start hunting the hunter. An elephant or rhinoceros, while not itself a carnivore, will nonetheless counter-attack with devastating effect. A zebra simply runs away. A zebra-skin run is thus an expression of wealth, rather than valor. It is the belonging of someone who paid to go on a trophy hunt, not of someone who volunteered to go out after a man-eating tiger.

    In the Rihanna picture, the pink and white portions of the wall are not stripes at all, they are psychedelic interference fringes, designed to visually present the state of being stoned. The furniture is that of a sitting room, or parlor. The one piece of furniture which I could see clearly was an upholstered chair of Victorian design. Perhaps more items are visible in the video clip.

     

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  41.  
    identicon
    Anonymous Coward, Oct 22nd, 2011 @ 4:17pm

     

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  42.  
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    Jay (profile), Oct 23rd, 2011 @ 11:10am

    Re: Re: Re: Re: Re:

    What line? It's non existant.

     

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  43.  
    icon
    Jay (profile), Oct 23rd, 2011 @ 11:17am

    Re: Re: Re: Re:

    Ah, copyright trolls act like patent trolls in suing the successful people. Meanwhile infringement continues to occur as people continue to dance, sing, play games, and infringe. That's a great system where expression is stamped out or expensive because of arbitrary laws to restrict people.

    Give me a break with all of the maximalist whining.

     

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  44.  
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    Jay (profile), Oct 23rd, 2011 @ 11:19am

    Re: Re: Re: Re: Re:

    "Meanwhile infringement continues to occur as people continue to dance, sing, play games--- "

    causing a perpetual cycle of people to sue.

     

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  45.  
    identicon
    Anonymous Coward, Oct 23rd, 2011 @ 12:28pm

    Re: Re: Re: Re: Re: Re:

    What line? It's non existant.

    And, of course, you give no argument. Just like Mike.

    Of course there is a line. Just because it's not black and white, doesn't mean it's not there.

    Take for example the difference between a laboratory assistant and a co-inventor. The line between the two can be hard to distinguish, but nonetheless a line exists. And when inventorship of a patent is challenged, a court must decide an answer one way or the other. Admittedly, some judges may come down one way, and other judges come down the other way. That's just the nature of the beast. That in no way means there is no line between lab assistant and co-inventor.

    You guys really are just being silly. It's all anti-copyright FUD. Honesty, you just sound stupid. You may disagree where the line should be drawn in some case, but that doesn't mean there's no line.

    If you actually have an argument, make it. Otherwise, quit whining and quit making unsupported conclusory statements. It's just your bias (and lack of reasoning) showing.

     

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  46.  
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    Prisoner 201, Oct 24th, 2011 @ 12:30am

    Re: Re: Re: Re: Re: Re: Re:

    The point of a line is that it is a clear and unambigious border.

    If it is "not black and white" or "hard to distinguish" then it is not a line - it's a grey area.

    Your confusion on this issue is what is making your post incoherent and logically flawed.

     

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  47.  
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    Jay (profile), Oct 24th, 2011 @ 12:50am

    Re: Re: Re: Re: Re: Re: Re:

    "And, of course, you give no argument. Just like Mike."

    I'm not familiar with La Chappelle and from all intents, everything seems to be an inspiration. But saying that these images in Rihanna's video are La Chappelle's when they're inspired by him is ridiculous. Saying he's owed money because somehow, he owns the idea of BDSM makes you look bad for trying to defend the fact that there is now no difference between ideas and expression. But this is not the first time that a judge has attacked this part of copyright. Link

    Now, copyright law (again) does not cover ideas. You only get a copyright on the expression, but not the idea.

    So where is the line while you're saying "everything is FUD?" It makes no sense how he ruled. Link

    For instance, the court pointed out that the video's "Pink Room Scene" and LaChapelle's "Striped Face" photograph both feature women dominating men in a domestic scene. That subject is not protectable, the court noted, because "the subjects flow naturally from the chosen idea" of sadomasochism.

    But the particular way that Rihanna's video portrayed the scenes--including the set, wardrobe, "generally frantic mood" and lighting--was "substantially similar" to LaChapelle images, even if all the details were not identical, the court concluded.


    So they express the idea of sadomasochism, with an obvious homage to LaChappelle, but LaChappelle owns the copyright to the pictures that have a few similarities to Rihanna's video sharing the same overall theme. Sorry, the judge is beyond confused. He's out of his league on this one.

    Finally, if you're going to try to criticize someone, you would do a lot better if you kept it in a similar field as the comments. Your analogy is pretty poor. You set up a false dichotomy based on your own definitions.

    And still, there's no line if the judge doesn't know where idea starts and expression stops or vice versa.

    Now stop spreading FUD based on a poorly thought out response on your part.

     

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  48.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 2:59am

    Re: Re: Re: Re:

    Yes there are tests that depends on the sole bias of the judge, that is just brilliant.

     

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  49.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 3:04am

    Re: Re: Re:

    Translation:

    I can't show you the dichotomy but it is there trust me!

    Answer:
    I'm sorry dave I can't do that.

     

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  50.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 3:06am

    Re: Re:

    A lick I could understand and even accept, but one law that depends solely on it is just a bit too much.

     

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  51.  
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    Anonymous Coward, Oct 24th, 2011 @ 3:08am

    Re: Re: Total BS

     

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  52.  
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    Anonymous Coward, Oct 24th, 2011 @ 3:15am

    Re: Re: Re: Re:

    Apparently not in the US that keeps receeding its market share in Asia and Africa.

    Funny thought that India, China, Nigeria put out 30 times as much entertainment than the US, just Nigeria puts out 10 times more movies and music as the US and they are creating their own thing over there, that is beating Hollywood and big labels, why is that happening?

    Apparently piracy is needed for people to produce things, without it everybody ends up looking like the US economy today a bottomless pit.

    Other countries don't want to watch American entertainment, and I do remember the time it was great and everybody wanted it, those times are gone, people don't identify themselves with what they hear or watch and are changing their habits.

    Producers of content are not connecting with the people their are supposed to hook.

    Maybe instead of worrying so much about money and affiliate fees they should be worrying more about producing something others want, just saying.

     

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  53.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 6:46am

    Re: Re: Re: Re: Re:

    The problem with your god awful analogy is that we are not talking about an issue with overwhelming moral implications. We're talking business.

    How can someone operate in the content business (especially indie artists, developers, etc.) when there are no clear rules about when and how they can be sued? Do you understand what a tax these types of lawsuits create on businesses? Can I develop an application with pulldown menus? Can I shoot a music video with dancing? Can I create a clothing line using flower patterns? People have been sued over all three of those issues and the problem is that only the wealthy can afford to defend themselves, others rely on a more clear set of rules.

    I'll go back to your original (rather shitty) analogy. If the rules for blowing up a country were clearly spelled out (ex. they have launched a nuclear weapon, or some such thing) then the majority of people should be able to come to similar conclusions based on the rules. We are not asking them if they think blowing up a country is right or wrong but rather, based on a set of highly specific rules should we take a particular course of action.

    In this case, the phrase substantially similar should have never come up as copyright is explicitly intended to stop copying not re-creating something similar. By this logic every book in the "romance" section is in violation of copyright infringement.

     

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  54.  
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    Anonymous Coward, Oct 24th, 2011 @ 8:17am

    Re: Re: Re: Re: Re: Re: Re: Re:

    The point of a line is that it is a clear and unambigious border.

    If it is "not black and white" or "hard to distinguish" then it is not a line - it's a grey area.

    Your confusion on this issue is what is making your post incoherent and logically flawed.


    Yes, the line isn't bright. That doesn't mean the line doesn't exist. There exists protected expression and unprotectable ideas. Those groups are mutually exclusive.

    Take good faith and bad faith. Reasonable people may disagree in a given case whether someone has acted in good faith or bad faith. That doesn't mean that there's no line between the two. Good faith does not equal bad faith. The dichotomy subsists.

    Judges use discretion and make judgment calls in every branch of law. Complaining about it here like it's something new is stupid. It's an unavoidable fact that there will always be disagreement about where to draw the line. So what? That doesn't prove that the dichotomy is a myth.

    It's really silly FUD to argue what you're arguing.

     

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  55.  
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    Anonymous Coward, Oct 24th, 2011 @ 8:29am

    Re: Re: Re: Re: Re: Re:

    Huh? There are balancing tests in every branch of law. Why is it that this balancing will shut down businesses who hopelessly can't tell if they're breaking the law? Talk about FUD. Yes, you can't point out the transaction costs here. Such costs are inherent whenever there's a balancing.

    And, of course, businesses are thriving in this environment that you claim can't possibly thrive. All of your FUD just isn't reflected in reality. It really is just anti-copyright FUD opportunism to whine about this.

    I pointed out why substantially similar works can lead to liability: All I have to do is change one pixel in your work, and I could escape all liability under your theory. That's not fair, and courts recognized early on that infringement can be nonliteral. Once you accept that nonliteral copying can be infringement, the issue becomes where to draw the line.

    Whine all you want about where the line is drawn, but please, please, please, don't make the intellectually dishonest claim that Mike makes that there is no line. Talk about a whiner.

    And no, not every book in the romance section is infringing. The idea of a romance and the scenes-a-faire that go with it are not copyrightable. That is why the romance section exists. If your parade of horribles were really a problem, the romance sections wouldn't be thriving as it does.

    Give me a break with all the anti-copyright FUD around here.

     

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  56.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 10:02am

    Re: Re: Re: Re: Re: Re: Re: Re:

    "The point of a line is that it is a clear and unambigious border."

    Says who. There are plenty of gray areas in the law and in other areas of life, yet people draw lines when faced with specific situations.

    Anyone who ever said the idea/expression dichotomy presents a bright line is an idiot. That doesn't mean it doesn't exist.

     

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  57.  
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    Anonymous Coward, Oct 24th, 2011 @ 10:06am

    Re: Re: Re: Re:

    Let's take your darkness and light example.

    At what point in the morning does it turn from "dark" to "light?"

    At what point in the evening does it turn from "light" to "dark?"

    There is not always applicable, clearly defined lumens level line where, if you have higher light-meter reading it is "light" and if you have a lower reading it is "dark."

    That does not mean lightness and darkness are mythical concepts.

     

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  58.  
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    Anonymous Coward, Oct 24th, 2011 @ 10:07am

    Re: Re: Re:

    de minimis copying and substantial similarity are concepts separate from the idea/expression dichotomy.

    throwing them all together in your post doesn't make sense.

     

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  59.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 10:08am

    Re: Re: Re:

    That has not happened in this case, or ever (to my knowledge). But thanks for the red herring.

     

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  60.  
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    Greevar (profile), Oct 24th, 2011 @ 3:07pm

    Re: Re: Re: Re: Re: Re: Re:

    "I pointed out why substantially similar works can lead to liability: All I have to do is change one pixel in your work, and I could escape all liability under your theory. That's not fair, and courts recognized early on that infringement can be nonliteral. Once you accept that nonliteral copying can be infringement, the issue becomes where to draw the line."

    In your own words, you make it clear that there is no line. It's completely arbitrary! Anything beyond a 1:1 copy is an arbitrary decision and will vary depending upon the judgement of the view. And we all know that every person views the same piece of art in a different way, so there's no expectation of consistency. A line must be clear and it must be consistent to be considered a line. This is neither.

     

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  61.  
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    Greevar (profile), Oct 24th, 2011 @ 3:12pm

    Re: Re: Re: Re: Re:

    It's simple, darkness is the complete absence of light. Anything that is not dark is light. Light comes in differing levels, but darkness is absolute. Let's try to show it with numbers. Darkness = 0. Light > 0. There's your proper dichotomy.

     

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  62.  
    identicon
    Anonymous Coward, Oct 24th, 2011 @ 5:33pm

    Re: Re: Re: Re: Re: Re:

    By that definition, it's never dark out. Frankly, I think that's stupid.

     

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  63.  
    identicon
    Anonymous Coward, Oct 25th, 2011 @ 11:48am

    Re: Re: Re: Re: Re:

    God forbid a judge (or jury) have to use his or her judgment.

     

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