Have You Been Debating What Color Some Random Dress Is All Day? Thank Fair Use

from the and-we-look-forward-to-the-eventual-copyright-fight dept

Yesterday evening I saw a tweet zip by in which some very smart people I know and respect appeared to be arguing about the color of a dress. It seemed like a weird thing, so I went and looked and saw what appeared to be a white and gold dress. No big deal. But, other people insisted that it was blue and black. Vehemently. At first I thought it was a joke. Or an optical illusion. Or maybe it depended on your monitor. But I called over a colleague here in the office, and she swore that it was blue and black. And I was 100% sure that it was white and gold. If you somehow live under a rock, here’s the image:

We now know the “truth” (sort of) — which is that the dress itself really is blue and black, but thanks to the lighting and some odd visual tricks it appears white and gold to a large part of the population. For what it’s worth, many people report that after a period of time it switches, and that’s true for me too. Late last night I took one last look (after everyone else in my family swore that it was blue and black) and I saw it blue and black. Amusingly, at almost exactly the same time, my wife suddenly saw it as white and gold. My mother-in-law suggested we both need to seek mental help. There are fights like this going on all over the internet, with lots of people trying to decipher why this image seems to work this way. So why are we writing about it here? Because it’s Fair Use Week, and what a great fair use story.

This image isn’t just being showed everywhere, it’s being modified, flipped, adjusted, poked and prodded as people discuss it in all sorts of ways (comment and criticism). And it’s all fair use. Take, for example, our own Leigh Beadon, who put forth on Twitter a theory about why different people see it in different ways:

In our internal chat, he was also submitting additional images as he played with the image. Take, for example, this one, where he played with the brightness levels:

And tons of others have weighed in as well. Even software maker Adobe got into the discussion:

And someone else posted a helpful video modifying it:

Vice has an amazing story in which they present the image to a color vision expert who is so stumped he admits he may give up trying to cure blindness to devote the rest of his life to understanding the dress. The folks over at Vox both insist that the color changing can’t be explained and that it can be (journalism!). The folks at Deadspin say you’re all wrong and the dress is actually blue and brown. Almost all of these are using not just versions of the image, but modified ones as well, to try to demonstrate what they’re talking about.

And there’s been no talk about copyright. Because we don’t need to be discussing copyright, because this is all fair use. Last night, some were pointing out that this was such an “internet” story that it’s great that it came out on the same day the FCC voted for net neutrality, but I say it’s an even better way to close out fair use week, with a great demonstration of why fair use matters.

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Comments on “Have You Been Debating What Color Some Random Dress Is All Day? Thank Fair Use”

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82 Comments
Anonymous Coward says:

Re: Brown and blue-tinted white

It’s blue and black:

http://www.romanoriginals.co.uk/invt/70931
http://www.dailymail.co.uk/video/news/video-1163136/Roman-Originals-The-dress-IS-royal-blue-black.html

Made by Roman, who is currently making a killing, thanks to all the unexpected, free advertising.

http://www.nbcnews.com/business/business-news/blue-black-white-gold-dressmaker-its-all-green-n314096

Anonymous Coward says:

Re: Re: Brown and blue-tinted white

And notice how, despite Roman and the original photographer having vested rights in the images, nobody’s even attempting to prevent the spread of said images, as everyone involved profits from the proliferation.

In other news, the dress is definitely not blue and black, as black isn’t a color. It’s a dark brown and bluish-white. The setting, lighting and exposure in the controversial photo allows you to see gold and white if you look at the entire photo, or black and light blue (I really don’t see the royal blue in ANY of the pictures) if you lean in close and focus on the dress, or pull far away so that the framing AROUND the photo keeps your eyes from getting distracted.

Roman must be really loving this, as it gets their name out there to everyone, even those who normally don’t think about dresses at all. That means that their name will now be what those people connect to fancy dresses.

Anonymous Coward says:

Re: Re: Re:2 Brown and blue-tinted white

It reminds me of the old optics gag you find in brain teasers about apples not being red, grass not being green, etc. (i.e., a red apple reflects red, and absorbs all other colors, so it’s everything except red).

– Yes, pedants could have a field day deconstructing my casual phrasing, but oh well.

art guerrilla (profile) says:

Re: Magic is real !

me too…

on the left side of this photograph is some material in the background that appears (i feel like a ‘Fair Witness’ in heinlein’s stranger in a strange land) black/white…

HOW is that black even REMOTELY like EITHER shade shown in the dress (which i find ugly-ish) ? ? ?

further, in the upper right, you can see the overexposure where sunlight is streaming in a window which has blue-green (teal?) drapes; to me, it is obvious that that is what gives the ‘white’ portion of the dress its blue-ish cast to the white… again, HOW can you match any of that blue-ish color to either shade (aside from the white with blue-ish cast alluded to) ? ? ?

i have not stared at it long enough to get the colors to flip, and won’t waste my time doing so…
it is a gold-ish brown and white with blue cast…

Anonymous Coward says:

Re: Re:

Yeah, I’m waiting for that ‘hey, I need to get paid for this pic!’ shoe to drop any day now. Or some sort of trademarking kerfuffle.

Aside: I had the same experience Mike did – no doubt gold and white then later blue/black with no going back. It is one of the weirdest optical tricks I’ve ever experienced and made me think the internet was being epically punked.

Anonymous Coward says:

I never understood all the hoopla about this. The person behind this gimmick must be a marketing genius, being able to make this silly thing the centerpiece of discussion boards throughout the whole internet.

I figured it might have been some kind of animated gif or something that slowly turns colors. But it seems there are only two distinct pictures, not a continuous color shift. I’ve seen both sets of colors (one a reduced size on a news site), I should have saved them for safe keeping.

Looking at the page code, there are two JPGs where the image is located, (but only one picture is shown in the browser) so I don’t understand that. Maybe the site just switches them out. Whatever.

Anonymous Coward says:

Re: Re: The answer is photography

It is to do with the human brain being lazy and taking shortcuts while processing information. Much like many other optical illusions. In this instance, it is people’s brains interpolating the dress’colour from the other visual input around it.

Here is a link to a picture that also shows colours being distorted by your brain.

https://richardwiseman.wordpress.com/2009/06/23/possibly-the-best-optical-ilusion-i-have-seen-all-year/

Anonymous Coward says:

Re: Re: Re: The answer is photography

It is to do with the human brain being lazy and taking shortcuts…

So the human brain is like an engineer. It takes a shortcut so as not to get bogged down in the details of a mundane task, and then spends an inordinate amount of time dwelling on the incredibly fascinating details of the shortcut itself.

beltorak (profile) says:

Re: Re:

I think you are selling this example short. It is something that a lot people have had direct exposure to. Normally when you start a discussion on fair use, you have to fill in back story, when the work was created, the copyright it falls under, what fair use allows, and how some example is fair use.

With this you can side step all of that and just point out that technically the photograph is under copyright, but fair use allows all these articles to be written with the original and remixed images, immediately – no waiting for some gatekeeper to give each and every newsie, blogger, and facebooker permission to make their point. Take out all the pics and the articles would be very hard to follow – you would have to go back to the original pic, and could only imagine the photo manipulations.

doubledeej (profile) says:

Bad cameras

I initially only saw it as white/gold, but can now see it either way.

This is a classic example of a horrible cell phone camera destroying the image. It severely overexposed the photo, making what was actually a dark blue appear to be nearly white, and what was black to appear to be yellow/gold.

A good camera (cell phone or otherwise) wouldn’t have done this. Cell phone manufacturers need to step up their game.

Anonymous Coward says:

Ghost hunt...

My screen is calibrated using a spyder pro and I’m 100% sure it’s gold and white after opening the ‘linked image’ in photoshop and examining the histogram and sampling various pixels.

What gives it the blue sheen is the ambient post-dusk lighting coming through a window. Why I think it’s white is because of the highlights in the creases. (google any image of silk and you’ll see the highlights on creases varies greatly) While the gold areas I think should be pretty self explanatory unless your monitor is not calibrated.

All in all, this feels like a witch hunt.

Anonymous Coward says:

Interesting fact

I captured the image, as presented by TD. I then opened it with IRVIEW and inverted the colors. What appeared gold looked white (with a bluish cast) and that which looked white now appeared gold. Total reversal. It has to be because the white parts have a high level of blue. Also, I’ve never seen black anywhere on this image. The human visual processing system has a remarkable ability to adjust color balance on the fly.

Whatever (profile) says:

Wow, talk about a joke

Mike, are you serious? The discussion has little or nothing to do with fair use, because the people who put the image out there WANTED it to be shared, wanted it to be viral, so they could sell more clothing.

Fair use isn’t required nor is it part of the plan, the image was released with full intention of it being copied, modified and shared, more like a creative commons license. Permission was granted up front so nobody had to use the affirmative defense of fair use.

I know you are trying hard to push fair use, but try to use better examples. This one isn’t very good and shows you to be desperate for examples and lacking in actual content to prove your case.

(oh yeah, fair use is an affirmative defense, because it only kicks in when you say “yes, I know it was copyright but…” that but is the start of an affirmative defense. No matter how many times you try to frame it the other way, you will always be wrong).

Carry on, see you all in a couple of months.

Anonymous Coward says:

Re: Re: Re: Wow, talk about a joke

Thank you for mention an incredibly obvious point that overlooks what the comment actually says. But consider this…when was the photo taken, by whom, where, what was the employment status of the photographer, etc., etc. A necessary predicate for any discussion of fair use regarding a specific work is that the work must be secured by copyright, which to this point has been assumed, but not shown.

nasch (profile) says:

Re: Re: Re:2 Wow, talk about a joke

A necessary predicate for any discussion of fair use regarding a specific work is that the work must be secured by copyright, which to this point has been assumed, but not shown.

The only way it might not be copyrighted is if there is no person who took the photo (a la the monkey selfie). There seems no reason to think that could be the case since it was a mother showing her daughter the dress she’d bought. Clearly she took the photo of the dress on purpose, so she holds the copyright on it.

even if it were a work for hire, which is an absolutely ridiculous suggestion, somebody would hold the copyright, even if it isn’t the photographer

Anonymous Coward says:

Re: Re: Re:3 Wow, talk about a joke

I do not, of course, disagree with what you say. My comment was directed to the author of the artcle because he chose to use the photo and associated internet banter as an example of the importance of the Fair Use Doctrine. The problem with his “hook” is that the doctrine has relevance when a copyrighted work is involved, but he provided no information that copyright law was actually in play.

Anonymous Coward says:

Re: Re: Re:4 Wow, talk about a joke

Since this post is sort of an amusing footnote in the larger context of what TD authors normally write about, I think there’s a certain amount of background law and behavior related to IP that’s taken as a given.

The entertaining aspect of the story isn’t whether copyright is in play. It’s that no one has, as yet, crawled out of the woodwork screaming that it should be.

nasch (profile) says:

Re: Re: Re:4 Wow, talk about a joke

The problem with his “hook” is that the doctrine has relevance when a copyrighted work is involved, but he provided no information that copyright law was actually in play.

I imagine he didn’t feel the need because the Techdirt audience is generally at least somewhat familiar with copyright issues, enough to understand that copyright in the US is automatic, and thus the photo is copyrighted. If he took the time to fully explain every single detail of every issue he writes about it would be a boring blog.

Pragmatic says:

Re: Re: Re:4 Wow, talk about a joke

As Nasch already pointed out, copyright in the US is automatic. The photographer has not come forward to complain that his or her (or perhaps a random Macaque’s) image is being spread around the internet, and that someone may well be making money from it, without permission or a license.

The fair use part is our discussion of the picture on a variety of platforms, sharing and modifying it, and all without seeking permission or getting a license from the rightsholder.

Without fair use, a lot of us would end up being charged with infringement. NOW do you get it? We need fair use so we can discuss the color of dresses without getting nastygrams demanding that we settle or end up in court.

Mike Masnick (profile) says:

Re: Re: Wow, talk about a joke

Not to mention that the existence of copyright in the photo has not been established…only, apparently, assumed.

To be fair, we’re also assuming that we all actually exist, and aren’t just figments of an overactive imagination on a mite crawling on your skin.

But, there are some things that normal adults can assume when in conversation with other normal adults who aren’t trolling.

That the image is covered by copyright is one of them. That you’re a troll, apparently, is another.

Anonymous Coward says:

Re: Re: Re: Wow, talk about a joke

I regularly engage in discussions with normal adults, but not so much here.

As for the observation that a copyright has been assumed, how quickly you forget past articles by the principals here declaring the need to properly establish the existence of copyright before attempting to assert legal rights.

Be honest for a change. You wanted to rail against a body of law whose existence you disagree with, and what was happening with this photo seemed like a good opportunity. Problem is the article would fall a bit flat if it turns out that the photo is not subject to copyright.

nasch (profile) says:

Re: Re: Re:2 Wow, talk about a joke

As for the observation that a copyright has been assumed, how quickly you forget past articles by the principals here declaring the need to properly establish the existence of copyright before attempting to assert legal rights.

When there were reasons to think there was no copyright, yes. For example, something was old enough to be in the public domain, or had so little creative aspect as to be uncopyrightable.

Problem is the article would fall a bit flat if it turns out that the photo is not subject to copyright.

You still have completely failed to provide any rationale for why this photo might not be copyrighted, even after having it explained to you repeatedly why there is every reason to think that it is. As Mike said, that is something a troll would do, not someone looking for honest conversation.

Be honest for a change.

Now that’s rich.

Mike Masnick (profile) says:

Re: Re: Re:4 Wow, talk about a joke

If you are going to write an article extolling the virtues of fair use, it seems to me prudent that the works used as examples in the article bear some relationship to US copyright law. A photo originating from Scotland would not be my first choice.

So your argument is that because the photo was taken in Scotland, the argument that US sites reposting/transforming it for commentary is no longer fair use? You really want to stake out that ground?

Anonymous Coward says:

Re: Re: Re:5 Wow, talk about a joke

A reply I prepared and submitted never made it to this thread for reasons unknown.

Rather than try and replicate it, let me say simply that a work being accorded rights under US copyright law is not as automatic as many here appear to believe. For example, a work’s national origin (17 USC 104) is an important factor. So, yes, it is important to ascertain the origin of an example to be used in a fair use article because fair use depends upon the applicability of US law.

nasch (profile) says:

Re: Wow, talk about a joke


Fair use isn’t required nor is it part of the plan, the image was released with full intention of it being copied, modified and shared, more like a creative commons license.

Did the original post contain a notice that it was licensed under CC or similar? If not, then it was copyrighted with all rights reserved (because that is automatically what happens in the US). In that case, without fair use, copying and distributing it would be copyright infringement, regardless of what is going on in the copyright holder’s head. That is Mike’s point (as I understand it anyway).

Anonymous Coward says:

Re: Re: Wow, talk about a joke

It contained no such notice. Here’s the genesis of the whole thing:

http://www.dailymail.co.uk/news/article-2971409/What-color-dress-White-gold-blue-black.html

Contrary to what Whatever claims, the people who sell the dress had nothing to do with this photo. Some woman bought the dress for her daughter’s wedding. She’s the photographer that took the picture. The purpose being to let her daughter know what dress she’d bought. Her daughter and soon to be son-in-law disagreed over the color of the dress, and put the picture on Facebook, where their friends disagreed on the color. From there one of their friends posted on tumblr to see what their followers thought. At which point the picture went viral and went to far too many people who seem incapable of firing up image editing software, or googling ‘optical illusions involving color’.

At no point was there ever a license granted, or an intent that people would repost and edit the picture. Just a mom to daughter “here’s the dress I bought”, daughter to friends “what color does this look to you?”, one of those friends to the world “what color does this look to you?”.

Anonymous Coward says:

Re: Wow, talk about a joke

Mike, are you serious? The discussion has little or nothing to do with fair use, because the people who put the image out there WANTED it to be shared, wanted it to be viral, so they could sell more clothing.

It wasn’t put out by the company selling the clothing, so…

And, even if it was, if they didn’t put a license on it, even they were relying on fair use.

Fair use isn’t required nor is it part of the plan, the image was released with full intention of it being copied, modified and shared, more like a creative commons license. Permission was granted up front so nobody had to use the affirmative defense of fair use.

Except no such license was ever mentioned. It was not released with this intention at all. One woman posted it, asking people for thoughts, and then everyone grabbed it.

In short, you’re wrong.

Steven says:

I noticed that you can get the “gold and white” image above which is how I see it šŸ™‚ to dark royal blue and black as it is on the website http://www.romanoriginals.co.uk/invt/70931 (they have 4 colors, u have to select the blue/black or u’ll see black/white) using color settings on windows photos viewer edit feature. Messed around randomly, Temp -100, Tint +100, Saturation +75 to +100, Brightness -75, Contrast +15 to +30, Highlights -10 to -50.

Was curious why the original image is so far off of the real color.

As for seeing the image above (gold/white) as gold/white vs black/blue; I see it gold/white all the time, except just for a few seconds when I thought i’d accidently changed the original then realized i’d just seen it different. Kinda spooky. šŸ˜› Cause it did switch on me just that once with no editing.

Steven says:

Re: Re:

One more thing…

I usually don’t wear dresses, but when I do, I find it is usually because i’ve been drinking dos equis.

If I were drinking and found my way into this dress store; I’d prefer the gold and white, and not terribly fond of the dark blue/black.

Roman needs to offer it in that color and after this big moolah they rakin in they probably will offer the gold/white color print.

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