by Mike Masnick
Mon, Oct 31st 2011 10:54am
by Mike Masnick
Fri, Oct 21st 2011 2:18pm
from the idea/expression? dept
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.
by Mike Masnick
Thu, Sep 8th 2011 11:59pm
Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection
from the idea-expression-dichotomy dept
Lawyer John William Nelson has written up a thoughtful discussion of the ruling, and why photography needs a "bright-line rule" that says there is no infringement for making a similar image, but only for copying the actual image (found via Michael Scott).
The post is a little long, but beyond agreeing that the judge in the case clearly blurs (or, perhaps demolishes) the line between idea and expression, it makes a good point about how photography is really "a mechanical representation of facts" and, of course, you cannot copyright facts. This is an issue that has always troubled some, and why, technically, the copyright on a photograph is supposed to be limited to things like the exact framing, the lighting, focus, etc. of the image:
Given that, Nelson suggests that the courts should set out a bright line rule that says the only infringement is in the actual mechanical copying of the photograph -- and not in making any sort of similar image:
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.He notes that there's already a similar such rule on sound recordings:
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.)Overall, though, I think that many photographers (and perhaps judges) have trouble with the idea that a photograph is a mechanical representation of facts, even if it's objectively true. Cameras are copy machines. That doesn't mean that photography doesn't take great and amazing skill, or that the results aren't artistic and unique. But they are copy machines, and granting expansive copyright control beyond the mechanical reproduction of the image itself seems to go against copyright laws' basic tenets.
by Mike Masnick
Fri, Sep 2nd 2011 6:46am
from the don't-see-how dept
However, I have to admit that I'm confused about Wright's claims in the post. She discusses a photographer, Jason Wilder, who sent a DMCA take down notice to Google, but asked Google not to forward his takedown to ChillingEffects. Google told him that it was the company's official policy in order to remain transparent about any content removed from the site, and saying that if Wilder doesn't want the noticed passed along to ChillingEffects, then he can rescind the notice. Wright seems to think this somehow opens Google up to liability:
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.It's true that nothing in the law requires that the notice be made public... but that's meaningless. Nothing in the law requires that the notice be kept private if the issuer requests it, either. Google is free to do whatever it wants with the notices, including making them public and forwarding them to whomever it wants. Nothing in that violates the DMCA. Furthermore, it accurately explained to Wilder that if he didn't want it public, he shouldn't file a notice. Again, that's entirely accurate. So what about any of that opens up Google to liability? The way you get hit with liability under the safe harbors is if you ignore a takedown request. But if Wilder rescinds his request, then there's no longer a request to obey. So how does this create liability for Google?
by Mike Masnick
Tue, Aug 16th 2011 9:35am
from the police-as-art-critics dept
by Mike Masnick
Wed, Jul 27th 2011 7:23am
Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward
from the general-frantic-mood dept
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.General frantic mood? General frantic mood?!? How is that a fixed expression? And it's not that not all the details were identical. It's that the details are extremely different.
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 is apparently also not a fan of fair use:
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.I'm not sure that sentence makes any sense. At the beginning it says the judge dismissed her defense, but at the end of the sentence it says she failed to raise the defense. But, still, it seems like you could make a really strong fair use case here, if you actually believe that there is protectable expression being copied (which I still don't). The purpose seems totally transformative. The amount used seems tiny. And the impact on the market for the photographs seems like it's only likely to be positive, not negative. How wouldn't there be fair use here?
Of course, this is good news for the other photographer making very similar claims against Rihanna, as well as plenty of other photographers who think someone somewhere has done something marginally similar to their work.
by Mike Masnick
Fri, Jul 22nd 2011 7:39pm
from the I-think-so,-but... dept
Take this case, which was first called to our attention by Stephan Kinsella, in which photographer Janine Gordon sued photographer Ryan McGinley claiming that 150 of McGinley's images were "substantially based" on her own photos. The site PetaPixel (linked above) has posted some of the "evidence," which should immediately make it clear how ridiculous this lawsuit is:
Gordon is apparently seeking $30,000 per infringement, which is the maximum statutory rate... though, to be honest, I'm surprised she isn't going for the full $150,000 by claiming these are "willful" infringement. Either way, it's yet another example of how the state of "ownership culture" today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money.
It's a sad statement on the state of culture today.
by Chris Rhodes
Mon, Jul 11th 2011 7:58am
from the must-be-a-slow-crime-day dept
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. [...]Even more interesting than his project about how people perceive their relationship with their computer might be how people perceive the artist's actions here. Many people seem to be up in arms, and feel quite strongly that his actions were criminal and should be punished. But what crimes did he actually commit? None of the immediately obvious arguments would appear to be viable when you consider the facts of the situation:
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.
1. Unauthorized access to a computer (hacking): The computers he used were open to the public, so no hacking there. Some might say that his program installation exceeded his allowed access, but I don't think customers are forced to sign any kind of agreement before using the computers, and even if they were, it is not currently the law (yet) that violating a Terms of Service agreement constitutes hacking.
2. Violation of Privacy: To argue a violation of privacy, in most places you would have first argue that the person videotaped had a reasonable expectation of privacy in the first place. Certainly, being in a public location, Kyle could have snapped pictures of those very same people with a handheld camera and, short of Apple themselves giving him the boot off the premises for annoying their customers, there would be no legal consequences to doing so. Additionally, it's highly likely that Apple (or the mall itself) had their own cameras present for security purposes. All in all, this would appear to be a nonstarter as well.
3. Wiretapping Laws: Someone might be inclined to link this to cases we've seen recently where police officers charge the people videotaping them with violating state wiretapping laws. They would be forgetting, however, that wiretapping statutes are usually restricted to audio. Still pictures means no wiretapping.
Now, despite my admittedly snarky sub-heading, it's also not clear that the Secret Service necessarily overreacted in this case. You have to realize that an investigating Apple employee found that a person had been (for several days no less!) installing a program on multiple Apple computers that called home repeatedly, presumably with information gleaned from those computers. Without knowing exactly what the program was or its intended purpose, it would be very reasonable to expect the worst. It's not beyond the realm of possibility that some customers log into websites or otherwise do things on a public computer that a keylogger would love to pick up. Hopefully, though, when they discover the true nature of the program, they'll realize it was all a misunderstanding and give the guy back his expensive electronics. Other legal experts seem to agree, but plenty of others are up in arms about this.
What do you think? Is what he did a crime, or merely creepy? Neither? Both? If it's a crime, what crime? If not, should it be?
by Tim Cushing
Wed, Jul 6th 2011 2:54pm
from the which,-oddly-enough,-is-also-the-'law-enforcement-way' dept
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.
by Mike Masnick
Thu, Jun 30th 2011 3:46pm