Is A Photograph A Derivative Work Of The Object In The Photo?

from the you-would-hope-not dept

There’s an interesting discussion going on over at William Patry’s blog, questioning whether or not a photograph should be considered a “derivative work” of the object or objects in the photo. The courts appear to be somewhat split on this. The importance of this concerns whether or not the photograph itself can be covered by copyright — and also whether or not the photograph can be considered infringement itself. If the photo is considered an unauthorized derivative work, then it’s entirely possible that whoever holds the copyright on the object in the photo could claim that the photo itself is infringing. Remember, in the past there’s been some concern about the legality of photographing copyrighted sculptures. A derivative work is supposed to be for something that “recast, transformed, or adapted” the original work, and is normally used for something like a translation of copyrighted material. However, does a photograph really recast, transform or adapt the object? Or is it an entirely separate work?

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Comments on “Is A Photograph A Derivative Work Of The Object In The Photo?”

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Craig (user link) says:

This madness must stop

Holy crap…what a Pandora’s Box this is going to be unless we take a firm line now and shut down infringement claims along these lines.

I’m reminded of the time I went to take a photo with my camera of a giant painting in an art museum. One of the docents came over to tell me that was not permitted. I was flabbergasted. Did she really think a grainy VGA image was a reasonable substitute for a massive painting?

If this type of “derivative work” claim moves forward, it will utterly destroy any type of urban photography, as nearly everything can have some copyright claim made upon it. For example, you couldn’t have any signage or decoration or architecture in your photo that is possibly covered by copyright. That means no logos of any kind. What on earth would we do, then?

Just ridiculous.

Elle says:

Re: This madness must stop

Re: the no photography rule in museums. There is another reason the docents and other official types at the museum don’t want anyone to photograph the art. It turns out that the flash from the camera can damage the artwork. One of the reasons why most museums use indirect sunlight or no sunlight at all is due to certain wavelengths of light (like UV) damaging the pigments in paintings (sort of like what happens to red and black upholstery in a car in Florida, the colors fade). I learned about this in my art appreciation and anthropology classes. The flashes on cameras also damage old bones dug out of the ground.

John (profile) says:


Wouldn’t this be a thumbnail? A paintings resolution is determined by the number of molecules that comprise the paint. Since the digital image of it will have an insanely smaller resolution, isn’t it just a thumbnail? And as far as the picture of a statue goes, the statue is a representation of a symbol and the importance of the statue is based on who made the statue, what value society places on the symbol being represented and the quality of the statue’s representation of the symbol. If a picture is taken, the ONLY thing that the picture and the statue have in common are the symbol. Or am I just an idiot?

waferthinmint says:

settled a long time ago in opposite direction

btw you can’t photo art in museums because flash photography degrades the art. too many asshats have abused the “no flash” rule, so now it is usually “no cameras”

there is also a worry for some paintings that brush strokes could be copied and works counterfeited.

LB says:

Re: settled a long time ago in opposite direction

Your comment about banning photos of art in museums will cause the work to be copied doesn’t hold up. I’ve seen art students with paper and pencils coping paintings, so I feel the really issue of no photos is the fact museums make money on the copies they sell in the gift shops.

MooCow says:

Re: Re: settled a long time ago in opposite direct

I’ve seen the art students too. In the Louvre of all places! Copyright! Heathens! Copyright!

And in some cases there really is a “no photos because of the gift shop” policy. You can’t take photos in the Sistine Chapel because Fujifilm has the photography contract for the fancy book in the Vatican Gift Shop. Camera flash is definitely not the issue, as the flash diffuses to the point of non-effectiveness (at least for people without high powered flash units) by the time it reaches the ceiling 30-ish ft above you.

But in other cases, camera flash does harm some paintings. It’s a complex “equation” based on what the painting is on, the paints used, age, type of flash, and flash strength. It’s just that most curators won’t “do the math” and figure out which paintings are at risk, and assume all are at risk.

Anonymous Coward says:

What the first 3 said.

1) This is a stupid-ugly problem.

2) A picture of a sculpture is like a degraded quality copy because

3) a picture (currently) transforms the 3D sculpture into a 2D image.

Of course for 3, what if it’s a painting? Oh well that’s right, the camera resolution is lower than reality (currently).

I hate copyright law now. People do dumb shit like complain that someone took a picture of their sculpture and wanted to show it to people. Nothing like creating art for the sake of not showing it to anybody.

Why isn’t it in this guy’s basement or destroyed again?

WesternWheel says:

Hold on here

The no Photo rules in museums came about because many of the works were “on loan”, and thus still private property. It was a security issue. I gleaned this as an art student living in London and speaking with the staff at the V & A. Also, it is a security measure for museums themselves: people not necessarily photographing art, but the area surrounding the art for future clandestine (theft) activities.

Dan says:

Who holds the copyrights on the Washington Monument (or any other national monument)? Who holds the copyright on the Grand Canyon (or any other national park)? If an amateur or professional photographer takes a picture of things like these (“Here kids stand in front of Lincoln so I can get this picture”) Now someone has to get money? Pulllease.

This is the same item related to the Egyptian claim of rights over use of imagery of the pyramids. Next thing “they” will be making us pay for natural landscapes…I have hundreds of pictures of the Grand Tetons. Do I have to send a check to …. Jackson Hole, Jackson County, USFS, Mother Nature? I tell ya… we are so lost.

Anonymous Coward says:

I think you’ll find a lot of that issue relates to commercial use of the images; you can take family snaps or vacation photos, you just can’t use them for resale. I don’t know all of the copyright “thing” in the US of course, but I know at least one large park area requires professional photographers to buy a license if they intend to resell the photos taken there.

It is unlikely (but possible) that family or vacation photos would cause much in the way of infringements in the mind of even those writing the copyright regs.

Copyright law is already confusing to most.

SomeGuy says:

A bit torn

I’m usually right there with you, Mike, but I have to say that I’m a little torn on this bit here. I mean, obviously, any picture that I (or anyone else similarly unskilled) take shouldn’t be considered a derivative work, because it’s just a picture (and from past experiences, probably a pretty bad one).

But some photographers are REALLY GOOD and can do some amazing things with photos; it’s real ART. Now, I don’t know if that’s necessarily a derivative work (I would probably argue it’s a completely new work in itself, the result of said Photographer’s skill and talent), but I don’t think it’s unreasonable to say that those (high-quality) photos should be any less protected than a painting or a sculpture.

I’m not exactly sure what i’m getting at here.

GetLogical says:

A Solution

Following this line of absurdity, I would argue that my own memory of seeing a copyrighted object ought to be considered as a copyright violation. After all, I have a pretty good visual memory, so don’t I carry around an image of the original object in my head?

The solution, then, would be to mandate that anyone who pursues such ludicrous infringement suits ought to fully protect their copyrighted material by having no one view or refer to it at all in any form, live or “Memorex”.

Anonymous Coward says:

There is no copyright on The Statue of Liberty or the Empire State Building. How could you violate someone’s copyright on it by taking a picture if there isn’t a copyright on it?

That being said, there are tribes in Africa that will kill you if you take a picture of them (as they believe that the camera steals their soul) so maybe working this out in a courtroom is a better option.

That being said, the whole topic is based on a blog discussion. Doesn’t mean that anything will ever come of it.

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