A photograph is a mechanical representation of facts. This is unlike a painting, which is a non-mechanical representation of something—be it facts, such as an attempt to paint an outdoor scene or create a portrait of someone, or imagination in the form of how the artist sees the world, such as the Vincent van Gogh’s Starry Night painting. Paintings, therefore, are pure expressions of ideas or facts. Photographs, however, are mechanical expressions of facts.

So can a photograph be copyrighted, even though it is a mechanical representation of facts? Yes.

Remember the Feist case—if the defendant in Feist had photocopied their competitor’s phone book pages then copyright infringement had occurred. They didn’t photocopy the pages, however—they copied the factual data and arranged it themselves. So even thin copyright allows some copyright protection, even if its limited.

A photograph deserves at least thin copyright protection. It is an expression of facts, even if it is a mechanical representation. Originality in the expression exists despite its mechanical origins—the angle, lighting, focus, and framing of the photo are controllable by the photographer. This allows a photograph to be original from another.

Photographs are mechanical representations of fact. Anyone who has ever taken photography seriously understands that these mechanical representations take a lot of work, effort, and result from each individual photographer’s expression of the scene being shot. Further, any commercial photographer will readily tell you of the importance of setting up a scene—be it in a studio, outdoors, or just knowing how to be in the right place at the right time.

But extending copyright protection beyond the mechanical copying of a photograph (i.e., scanning it and sending it to all your friends) is extending copyrights in photographs too far. The expression of a photograph cannot be separated from its factual reproduction of actual events. Attempting to do so leads to absurd results.

Therefore, a bright-line rule should reserve copyright protection in photographs only for the reproduction of those photographs. Copyright protection should not extend to the elements within the photographs themselves—doing so results in copyrighting facts, which is beyond the scope of copyright law.

I can record my own version of, say, one of Rihanna’s songs and the owner of the sound recording copyright cannot sue me for copyright infringement. (The owner of the work’s composition and performance copyrights, however, could.)

Nothing about 17 USC 512 requires that the complainant agree that his notice be made public and Google’s policy is not the law.  So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement.  Now that’s cold.

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.

"Both works share the frantic and surreal mood of women dominating men in a hypersaturated, claustrophobic domestic space. Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of “Striped Face” and the “Pink Room Scene” as the same," Judge Shira A. Scheindlin wrote in her decision.

The judge dismissed Rihanna's fair use defense out of hand, saying it was so misguided and "unavailing" that the pop singer failed to raise a fair use defense at all.

Image from Notcot

On three days in June, McDonald's program documented people staring at computers in Apple stores. Since the stores wiped their computers every night, he had to go back in and reinstall the program each day he took photos. He uploaded a collection of the photos to a Tumblr blog, and last Sunday he set up 'an exhibition' at the Apple stores. During the unauthorized event at the Apple stores on West 14th Street and in Soho, when people looked at an Apple store machine, they saw a picture of themselves. Then they saw photos of other people staring at computers. Amazingly, nobody made a fuss. [...]

Over the course of the project, McDonald set up roughly 100 Apple store computers to call his servers every minute. That's a lot of network traffic, and he learned that Apple monitors traffic in its stores when he received a photo from a Cupertino computer of what appeared to be an Apple technician. The technician had apparently traced the traffic to the site McDonald used to upload the program to Apple Store computers; and installed it himself.

McDonald figured that Apple had decided the program wasn't a big deal. That was until four Secret Service men in suits woke him up on Thursday morning with a search warrant for computer fraud. They confiscated two computers, an iPod and two flash drives, and told McDonald that Apple would contact him separately.

The problem with bad behavior is that it rubs off on others and this is one of those "Everything I Needed to Know About Human Behavior I Learned in Kindergarten/the Stanford Prison Experiment" moments.

Hypothetical: If you're a US Airways employee and you don't like the fact that your rudeness has prompted a passenger to snap a picture of your nametag for reference, how would you handle it? Well, chances are you'd handle it the way you routinely see problems like this handled in an airport:

Sandy DeWitt said the employee, whose name was Tonialla G., was being rude to several passengers in the boarding area of the flight to Miami. So DeWitt snapped a photo of her nametag with her iPhone because she planned to complain about her in a letter to US Airways. But the photo didn’t come out because it was too dark.

However, once DeWitt was settled in her seat, preparing for take-off, Tonialla G. entered the plane and confronted her. "She told me to delete the photo," DeWitt said in an interview with Photography is Not a Crime Saturday morning.

Of course that's the way you handle it. The TSA handles complaints and "unruly" photographers this way as do several members of law enforcement. Obviously you, as a private citizen (and "hypothetical" US Airways employee), should be able to handle your current "situation" in the same fashion.

But that's not all. Once you've verified that the photo has been deleted, it's time to take the "situation" to a whole new level:

[T]onialla G. wouldn’t let the issue go. She then walked into the cockpit to inform the pilot that DeWitt was a "security risk." Next thing DeWitt knew, she was being escorted off the plane by two flight attendants. Her husband followed.

Off the plane, she spoke to a Michael Lofton, a US Airways manager at Philadelphia International Airport, who told her she would not be allowed back on the plane because she was a security risk. But even though she was supposedly a security risk, Lofton directed her to American Airlines where they supposedly had a flight back to Miami leaving soon.

Beautiful. It's great to see TSA-esque tactics being wielded by employees, who don't like being held responsible for their actions. It's also great to see that US Airways didn't even bother to check out her story before forcing her to switch flights. And it's mind-blowingly idiotic to see a person that one airline has deemed a "security risk" is allowed to board another airline without any hassle. 

This may be US Airlines' black eye (and they've got several), but it appears to be a yet another case of abusive behavior hiding behind the one-size-fits-all label of "security."

Tip of the hat to Reason Hit n' Run.

It also landed her smack in the middle of an ethical and legal debate that may be as important as the future of the Internet itself.

To be sure, Stefanie did not seek this fight, and doesn't feel too compelled to be its poster child, either.

"I never even thought about what could happen,” she said. “To me, it's just a picture. I tweeted and put my phone away. ... I had four hours of sleep and wasn't thinking. I was trying to spend time with my dad. I've never been a person who feels like I need to make money off of everything. I just put it out there for people to see."

This raises an interesting question on privacy and balance.

Google decided to blur the faces of ordinary people going about their ordinary activities caught on Street View.

The BBC have decided, where events like the Royal Wedding are concerned, it's fine to have high definition street shots showing the faces of ordinary people in the crowd; not to mention police officers, armed forces and - presumably - under-cover crowd security officers.