Copyright Means You May Need Permission To Post Photos Of Your Own Home Online
from the removing-ownership dept
One of the life’s certainties is that copyright maximalism will continue to encourage absurd rulings by complaisant courts. Here’s a rather spectacular case from Germany. It involves a “photo wallpaper”. For those of you who – like me – aren’t quite sure what that means, it is the name given to wallpapers that are essentially huge, blown-up images based on photographs. In this particular instance, photo wallpaper was used to decorate a holiday flat. As is normal for such situations, the owner took pictures to entice people to rent the property, including images of the room with the photo wallpaper, which was clearly visible in the online marketing materials. Here’s how things went as a result, reported by Pinsent Masons:
The flat owner had purchased the wallpaper in 2013 at a price of €13.50. In 2020, the flat owner received a cease-and-desist letter: the photographer, who held the copyright to the tulip photos used for the wallpaper, considered that his rights to the images had been infringed and demanded the flat owner to stop reproducing the photographs on the internet. The owner of the holiday flat refused to sign the cease-and-desist declaration and the case went to court.
The photographer explained that he had given permission for his photos – of tulips, apparently – to be used for a wallpaper. But he had only given permission for the use of the photo as wallpaper, and claimed that further permission to display his image was required if a photo of it were put online. Unfortunately the Cologne Regional Court agreed with this interpretation. It’s a ruling that could have important ramifications for anyone taking pictures of furnished rooms, as the Pinsent Masons post explains:
the ruling is not only relevant in relation to photo wallpapers, but could also be extended to other furnishing items that create an atmosphere, such as pictures, sculptures or designer furniture.
This case is yet another example of copyright gone mad, with additional authorization being required for perfectly normal and harmless activities that no rational person would regard as requiring permission or payment.
Follow me @glynmoody on Mastodon or Twitter, originally posted to the Walled Culture blog.
Filed Under: copyright, germany, permission, rentals
Comments on “Copyright Means You May Need Permission To Post Photos Of Your Own Home Online”
Incidentally, doesn’t this render any works by the photographer in question nearly useless. Since you now can’t use his works and expect that your done paying for them. He can (and will) always come back and say “Nuh uh! I did not license this use!”.
Which means using his works is a nearly bottomless legal liability.
Re:
I mean, if he WANTS to voluntarily blacklist himself from anyone wanting to ever go near his works commercially, he’s within his rights to demand that, and has now done so.
Re: Re:
Any idea who the artist is though? The court decision was published without the name of the plantiff (or defendant, for that matter). And with the Right to be Forgotten law, they can stay anonymous, or at least hidden from web searches.
Re: There is a consideration
ADD/Augment the painting. And Pay him nothing.
'I have to get permission for WHAT?!'
Do you want to sour the public on the very concept of copyright and get more and more people on the side of ‘kill it, it does more harm than good’?
Because this is how you get people to go from thinking copyright is a worthwhile part of society and law to thinking that we’d be better off without it.
Re:
Laws don’t have to conform to what Joe Public thinks.
If they did, a bunch of horrible stuff would be legal, along with good stuff like abortions and drugs.
Re: Re:
They kinda do if they want Joe Public to care about and support those laws rather than ignore and/or work to see them overturned, all the more so when talking about laws that impact large chunks of the population and would would turn them into criminals for actions people don’t even blink at should they actually be enforced.
Tell someone that thanks to copyright that wallpaper/picture/statue they thought they bought isn’t actually theirs and if they want to take a picture that includes it they need to get permission or risk a lawsuit and they’re probably not going to respond by exclaiming about how awesome copyright is.
Re: Re: Re:
“they’re probably not going to respond by exclaiming about how awesome copyright is”
Yeah, but the same is true about any law and someone caught infringing it, whether you’re talking about parking tickets or a fine for, just for example, participating in an insurrection.
If the owner is an artist, they’ll get it.
The owner has paid for a reproduction of the art, not the art, and I do not care how many times people yell, that is not the same thing.
You get buyers crying that they can’t make copies of books* they buy and give them away, or even sell them, as many times as they wish. I assume you don’t think that’s fair?
*Note, I’m not talking about being able to sell your actual only copy of the book – which is a right I deny no one -, nor am I going to get into the whole “why can’t I give away an ebook?” argument because it never goes anywhere that isn’t impossibly stupid.
Re: Re: Re:2 Its a law now, but maybe not forever.
Laws exist by the leave of the governed.
Re: Re: Re:3
::laughs in abortion::
Re: Re: Re:4
To be fair, it’s an aspirational concept that requires constant, vigorous defence. It often succeeds and it sometimes fails spectacularly.
Re: Re: Re:2
Yeah, but the same is true about any law and someone caught infringing it, whether you’re talking about parking tickets or a fine for, just for example, participating in an insurrection.
Bad comparison, those are acts that people know(or really should have for the later) are violations of the law, this is more along the lines of someone getting hammered for an act that people do on a regular basis but which turns out technically had the possibility of being illegal all along like, just as a hypothetical, taking a picture of your own house and sharing it.
As for the rest of the comment I’ve no idea what that has to do with any of this. No-one is deciding that rather than pay for some art they’re just going to grab a screenshot from a video showcasing a house and use that instead so comparing this with someone printing out a duplicate book to give to someone is in apples to orangutans territory.
Re: Re: Re:3
“taking a picture of your own house and sharing it.”
That’s not what is being argued about.
The defendant took a picture of art in his house, for purposes of advertising the apartment. I described what the art is like and how it appears in this comment:
https://www.techdirt.com/2023/03/15/copyright-means-you-may-need-permission-to-post-photos-of-your-own-home-online/#comment-2910429
“No-one is deciding that rather than pay for some art they’re just going to grab a screenshot from a video showcasing a house”
You can prove that, can you? And you can prove that this trumps German black letter law?
Although it’s legal to use images of architectural works without permission:
https://variety.com/1998/biz/news/judge-dismisses-case-of-batman-sculptures-1117471543/
This art was not public, and not architectural. So even in the USA, it may well be protected, given there is no transformation, and almost the entirety of the artwork is reproduced in the photography.
Re: Re: Re:4
“This art was not public, and not architectural”
No, it’s frigging wallpaper, though. It’s not like there was a framed photo or painting they were showcasing to advertise the room, although that would still be idiotic to complain about if the people who would be going into the room would see those things. It’s wallpaper. As in, attached to the wall and not easily removed while taking a picture. As in, now part of the house.
You can argue that it’s technically legal under the letter of the law, but there’s no way to argue that the simple act of taking a photo of the house as it exists is not what the issue is here.
Re: Re: Re:5
“there’s no way to argue that the simple act of taking a photo of the house as it exists is not what the issue is here.”
no, it’s not. Which is what i’ve been saying, actually
Re: Re: Re:6
“no, it’s not. Which is what i’ve been saying, actually”
I may have missed something, but you seem to be saying it is, and purely because they had the wallpaper in their house. If they had not installed to wallpaper as intended, they would not have had problems later on when they did something else unrelated to the wallpaper, other than it had been installed as agreed.
Again, it’s not an easily moved piece of furniture or framed painting, it’s going to be visible to whoever visits the house, and that includes when people accurately illustrate how the house looks.
Re: Re: Re:7
” it’s not an easily moved piece of furniture or framed painting”
That’s irrelevant to the German law as it seems to be.
“If they had not installed to wallpaper as intended, they would not have had problems later on when they did something else unrelated to the wallpaper”
No, no, no.
I’m saying that the artist gave the company who made the wallpaper a license to allow purchasers to put the wallpaper on their walls, on display in that way.
The artist did not give the company or any purchasers the right to make further reproductions of that art and make a profit from it.
If I make a drawing on my computer, and I let someone take a photo of my screen, I am not granting them a license to print that picture off and distribute it for free or for money.
If I allow a picture of mine to hang in a gallery, and even if I allow photography in that exhibition, I’m still not granting you permission to use the photos you might take of my picture, send them to your local copy shop and make posters for you to see.
Disney makes a shitload of merchandise off the back of their animated movies, including colouring books. If you cleverly colour one of the images in one of those books and offer that coloured image (or a copy of it) for sale or even for free exhibition, you won’t even be a smear on the ground once the Mouse’s lawyers get done with you.
This artist has done no one any favours. But you simply cannot pretend their claim wasn’t lawful, or that it will have any significant impact on consumer sentiment.
What it might do is force companies who buy images from artists for wallpapers and so forth, to pay a small extra amount to purchase a limited reproduction license in perpetuity on behalf of their future customers to avoid such silliness in future.
Re: Re: Re:8
“make posters for you to see” ==make posters for you to sell
Re: Re: Re:8
“That’s irrelevant to the German law as it seems to be”
Maybe. But, the point of the discussion isn’t the current state of German law, it’s about how utterly stupid it is for someone to be claiming that they are entitled to rental income because your wallpaper was visible. Legal or not, that’s still really stupid.
“The artist did not give the company or any purchasers the right to make further reproductions of that art and make a profit from it.”
…and only in the diseased mind of a copyright maximalist would that even be a question. If they tried making a new wallpaper to sell, or otherwise reproduced the actual art to profit from new art, maybe that could make some sense. But, this is just someone taking photos to accurately depict the room as it would be visible to someone renting it. AFAIK, there has never been a point in time, in Germany or elsewhere, where it’s logically assumed that any piece of furniture, art or other product in a photo displaying a room to rent entitles someone to a piece of that income. If I go to a store and buy an off the rack wallpaper, I don’t expect the store to claim my rent.
“If I allow a picture of mine to hang in a gallery, and even if I allow photography in that exhibition, I’m still not granting you permission to use the photos you might take of my picture, send them to your local copy shop and make posters for you to see.”
But, if I’m advertising my house and I have a print hanging in the room, it wouldn’t be expected for you to claim my rental income. Hypothesise all you want, the person here wasn’t reproducing the art for profit, they were renting a place where the renter would be able to see it. What next, you demand an entrance fee if they want to use that room?
“If you cleverly colour one of the images in one of those books and offer that coloured image (or a copy of it) for sale or even for free exhibition”
Again, you are defending this situation by coming up with things that aren’t happening. Are you saying that if someone paints Mickey in a nursery room, then rent the house using pics of the room among others then they get sued by Disney? Because I’m sure that’s happened many times and people haven’t been sued. Nor would it benefit anyone to do so. Disney would lose good will, and that family won’t buy Disney products, they’d lose more than the pennies gained by abusing the parents.
“What it might do is force companies who buy images from artists for wallpapers and so forth, to pay a small extra amount to purchase a limited reproduction license”
Or, tell those greedy assholes to GTFO and take zero because people would rather choose something else.
Re: Re: Re:8
Consumers might not be able to say that the artist’s claim here was unlawful. But they will certainly have rather poor sentiments on artists who think this way, as well as content creators whose first response is to steadfastly hold onto their legal entitlements to make additional monetary demands for work that was already done.
Perhaps you should have started your diatribe with a disclaimer that the plaintiff’s actions in this case have given copyright law as a whole another hit to its reputation, instead of saving those regrets for later. After all, it was Malibu Media’s litigious actions that led to the courts withdrawing copyright protection for pornography as a whole.
Re: Re: Re:4
The defendant took a picture of art in his house, for purposes of advertising the apartment. I described what the art is like and how it appears in this comment:
Because it was attached to the wall and as such part of the house as it was at the time unless the homeowner wanted to rip it out(which they and everyone else with wallpaper from that artist really should have do at this point) and then take the picture.
We’re talking about wallpaper that they paid a whopping 13.50 for, pretty flowers or not I’m pretty confident that they weren’t taking the pictures with the thought that that would be a major selling point of the house and therefore that is why the pictures included the wallpaper.
You can prove that, can you?
With absolute certainly? No. Do I feel confident in saying that the number of people who would do something like that is likely in the low single or double digits at most? Yeah, pretty confident.
And you can prove that this trumps German black letter law?
You miss my point. It’s entirely possible that this ruling is indeed in accordance with current german copyright law and that is the problem because as I said in my original comment this is the sort of thing that turns people against copyright.
Telling people that thanks to the current laws they have to be careful not to use the ‘wrong’ wallpaper unless they want to risk a lawsuit should they take a picture of their own house is not how you get people to support those laws, that’s how you generate contempt for them.
Re: Re: Re:5
“ this is the sort of thing that turns people against copyright.”
TBH there are two kinds of people who give a toss about copyright – creators, and those who don’t want to pay for anything someone else makes.
The former group, which includes me, largely agree copyright laws are broken, in no small amount by large corporations like Disney which actively fight paying small creators fairly for their work, and actively suppress lawful fair use like transformative works. We try to work within a framework we had no part in creating.
The latter are greedy shits who make creating unrewarding emotionally and financially and respond abusively to any discussion of creator rights eg
https://www.techdirt.com/2023/03/15/copyright-means-you-may-need-permission-to-post-photos-of-your-own-home-online/#comment-2910620
This group thinks the former group are all like Disney, and won’t listen when we try to explain that Disney is our worst enemy, as are creators like the artist in this case.
Re: Re: Re:6
I’m neither of those things and I very much give a toss about copyright.
What’s your gripe with that comment? Copyright infringement isn’t theft.
Re: Re: Re:7
As an artist, I am very much for the abolition of the current concept of copyright. It’s not fit for purpose and frequently actively harmful to us.
Re: Re: Re:8
“abolition of the current concept of copyright”
The main issue is what replaces it. The real meat is how to replace it with something effective, and not argue for the clearly wooly and wrong idea that everything would be better if nothing replaced it.
Re: Re: Re:7
Thanks for demonstrating my point so clearly
Re: Re: Re:6
TBH there are two kinds of people who give a toss about copyright – creators, and those who don’t want to pay for anything someone else makes.
Please show consideration for your fellow commentors and clean up any loose straw after whaling away at the strawman you just created.
Re: Re: Re:7
You first, m’lord
Re: Re: Re:8
Well thanks for confirming you’re not interested in an honest discussion and I’ve no need to waste further effort on you I guess, have fun jousting with figments of your imagination.
Re: Re: Re:9
You keep changing the discussion you want to have.
First it’s that this decision is stupid and illegal and wrong.
When I show you that under German law it’s not illegal or wrong, but maybe stupid, you decide it’s all about public sentiment.
When I give you my opinion of public sentiment and how it actually relates to copyright in operation, you say I’m invoking a straw man. No, it’s my opinion of how this shakes out. I even gave you an example of it shaking out, but no, not enough 🙁
I’ve done more than anyone else has done in this thread to actually look at the decision, drag out examples of the artist’s work, and try to puzzle out why the German court came to this decision, and also offer my opinion on how that might relate to US/Australian law – and no one is interested in those facts.
All they want is yell ‘copyright is wrong’ and ‘copyright infringement is not theft you disgusting shill’, and not even talk with any actual legal basis about how this decision would operate in other jurisdictions.
I’m the one wasting time. The figment of my imagination is that anyone here cares about reality and copyright. I can’t ignore the law because I’m a creator selling works under the current law.
Hell, Mike Masnick is too busy being snotty at MMB to answer my serious question as to why he thinks the photographs by the house owner in this case are transformative under the meaning of the copyright laws. I really want to know.
Instead, people are throwing up stupid arguments about copyrighting curtains.
Copyright laws aren’t going to be changed because people hate them, because people already hate them – for two main reasons, which is what I was saying in my ‘two kinds of people’ comment. I could have added a third group – people who hate them because they’re not restrictive enough, but they aren’t people, but big companies.
I fail to see what more I could possibly have done to engage with the post, and you, and other commenters in complete good faith. And it’s still not enough.
What, exactly, are you expecting from me that I have not provided fulsomely?
Re: Re: Re:10
First it’s that this decision is stupid and illegal and wrong.
When I show you that under German law it’s not illegal or wrong, but maybe stupid, you decide it’s all about public sentiment.
Point to where I said it’s illegal, be specific.
Is the ruling ‘right’ in the sense that it’s in line with the current laws? Barring a higher court overturning this one(assuming there is one) quite likely. However legally right is not and has not been the framing under which I’ve been saying it’s wrong as a ruling.
I absolutely have and will continue to say that as a ruling it’s stupid and wrong not just because of the absurd idea of suing someone for taking a picture of their own house but because it undermines respect people might have for copyright by showing just how mindbogglingly stupid it is in it’s current state.
If the courts, lawmakers and others want the public to support copyright this is not a case that’s going to help that, that is and has always been my objection to this whole debacle.
When I give you my opinion of public sentiment and how it actually relates to copyright in operation, you say I’m invoking a straw man. No, it’s my opinion of how this shakes out. I even gave you an example of it shaking out, but no, not enough
Lemme see if I can make it clear another way…
Inverting your ‘the only people who care about copyright are creators and cheapskate thieves because some people object to paying more than they think they should have to’ claim I could point to one of the numerous copyright extortionists TD has covered and claim that the only people who care about copyright are either those that see it as a means to extort money from others or those that care about creativity and cultural growth.
This would be dishonest of me because it uses a very limited dataset to paint everyone into one of two boxes: Those that agree with hypothetical me or those that don’t because of bad motivations.
That is why what you said is a strawman, because you tried to stuff everyone into two boxes, those that are on board with copyright or those that object to it just because they want stuff without paying for it, ignoring the massive range of other options, and whether you realized it at the time or not heavily poisoning the well by your framing of the issue.
Now if you want to reframe it as some people don’t agree with copyright because they want free stuff then fine, I doubt anyone here is going to say that there aren’t cheapskates out there even if I wouldn’t agree that this case is an example but when you put forth a binary ‘you’re either in this group or that group’ that paints anyone who disagrees with you as only doing so because of nefarious intent you really should have expected pushback on that.
Re: Re: Re:11
I shouldn’t bother replying, because I’ve been labelled “that angry woman” and my replies are called “rants” and “diatribes” but hey, why not start another day badly?
“Point to where I said it’s illegal, be specific.”
Agreed you didn’t say “illegal”, but you repeatedly said it’s wrong, which could mean legally and/or morally wrong. You can have that point.
“I could point to one of the numerous copyright extortionists TD has covered”
Yes, you could. But right at the beginning, and in your most recent comment, you are again talking about public support, ie, public sentiment.
Obviously there are plenty of people who are involved in making money from copyright who aren’t creators – lawyers, manufacturers, copyright trolls, etc.
We were talking about the people who have some emotional involvement with copyright issues, and I have repeated stated and stand-by my assessment that these fall into two groups. And I have further clarified that I was talking about my personal experience.
Since I’m talking to people here who are perfectly happy to scream “WRONG” at a foreign court over a decision they can’t be bothered to read, what’s the point of wasting nuance on them? I mean, I tried that, and have been stuffed into a box called “angry female” and had every point I’ve made dismissed.
“you really should have expected pushback on that”
Yeah, but only because when copyright is discussed on this blog, I can’t get a single person to admit that creators should have any rights at all.* I was called a copyright shill and told “copyright infringement is not theft”.
So in a commentariat where it’s not acceptable to care about creators getting fair recompense**, where the laws in other countries are dismissed as inferior because they aren’t the same as the American laws, and when the particularities of a case which are crucial to a decision that is being repeatedly and wrongly characterised as “taking a picture of their own house”, are ignored…
Yes, I really should have expected pushback and to be misinterpreted and dismissed. Stupidly I was hoping for serious engagement and discussion. What a fool I am.
So shall I take my smackdown from the mighty That One Guy and run away? Yes, I will. I give up. You win. You can have the last word by replying to me in your usual way.
*Your mate Paul claimed that I only care about people getting my ebooks for free because I’m such a horrible writer that I don’t sell many books.
(Oh and that my ebooks – not available in print – must be so horribly formatted that no one would want to pay for that product. Most badly formatted ebooks are in fact made by large companies taking old books and scanning them, using OCR and no proof-reading. I mean, old mate could have just asked me about all of this but it’s much more fun to assume.)
Actually, I don’t care about the thieves – oops, can’t call them that because people taking copies of my books without paying for them or using legitimate ways to read them for free like through a library is just the market talking I guess – and long ago made my peace with that reality. I even said in the comment he replied to so nastily that those people would never be my customers. There isn’t a single point anyone can or has made about ebook pirates I haven’t heard before. The reality is that some people do not believe digital works have value and cannot be stolen, and nothing will change their minds. I have my doubts whether they end up making collateral sales for creators, but we are thirty years past the point of being able to rein them in, and I don’t care to try.
I would also never claim to be a great writer, nor am I unhappy about my sales, nor do I want to be another Stephen King.
**The artist in the German case is a greedy shit. There are plenty of artists being ripped off by companies large and small who are not greedy shits, and who have their art stolen to make commercial goods without a penny in recompense all the time
Re: Re: Re:12
Then go focus on them, for goodness’ sake. Mentioning the good that copyright law does is a fat lot of good in scenarios where that same law gives trolls the license to chase after uses that don’t incentivize creators to create more and instead convinces them to go after easy targets.
Bringing up corporations bullying artists in cases like these doesn’t make you the devil’s advocate. It makes you look petty, lashing out of fear that failing to do so will somehow legitimize copyright infringement by large corporations.
Re: Re: Re:6
“TBH there are two kinds of people who give a toss about copyright”
That’s the fun thing about strawmen, you can make up any position you want, then randomly assign people to those fictional positions, then everything’s easier because you’re playing an idiotic sports game instead of dealing with actual nuanced reality.
The problem is, sometimes you’re trying to argue with people who accept complex reality, and your strawmen fall flat in the face of facts,
Re: Re: Re:7
The person I was replying to insisted that copyright laws can’t be enforced because public sentiment would turn against the lawmakers.
I was offering my opinion on how public sentiment really operates in relation to copyright. How is that a strawman?
People already hate copyright law. It’s had no effect. In fact copyright law is getting more and more restrictive, with ludicrous effects.
“sometimes you’re trying to argue with people who accept complex reality”
Oh please. I’ve done more than anyone in this thread to try and work out what was going in this decision. Not a single other person is engaging in that, or has even bothered to look at the decision, or the photos, or the art involved.
I’m not going to argue about the actual existence about copyright law just to be insulted as a shill.
And you are only offering insults. Tell me what I said that was so contrary to reality? What ordinary people care passionately about copyright law unless it affect them as a consumer or a creator?
I’m just disgusted by the responses I’m getting here. No one wants to discuss how the home owner’s photos might really be transformative and thus an exception to the German/AU/US laws, and yet I’d really like to know this. Just going “oh ffs, how ridiculous” is stupid, because a lot of copyright laws are stupid (you can blame greedy corporations for this – the artist in this case is being greedy, but they’re only taking advantage of a law put in place to satisfy the megarich and megapowerful corporsations.)
The problem is, sometimes you’re trying to argue with people who just yell ‘strawman’ because talking about the complex issues is too much like hard work.
Re: Re: Re:8
The person I was replying to insisted that copyright laws can’t be enforced because public sentiment would turn against the lawmakers.
If that’s what you read from my comment then either I failed in getting it across or you need to work on your reading comprehension. It’s not a matter of ‘copyright laws can’t be enforced or people will turn against them’ it’s a matter of ‘if you show people just how blindingly stupid those laws currently are via absurd lawsuits they’re more likely to ignore or oppose them because they no longer respect or support them.’
Tell someone copyright helps creators avoid having someone copy their stuff and make money instead of them and they’re probably going to be in favor of it.
Tell them that thanks to copyright a cheap wallpaper can give the one who made the pictures on it the ability to hold veto power over any video/picture that includes it and open the door to five figure fines and that support is likely to wane some.
I was offering my opinion on how public sentiment really operates in relation to copyright. How is that a strawman?
To quote:
‘TBH there are two kinds of people who give a toss about copyright – creators, and those who don’t want to pay for anything someone else makes.’
If you can’t figure out how ‘when it comes to copyright you’re either someone who creates or a thief’ is a strawman that’s kinda on you.
Re: Re: Re:9
“If you can’t figure out how ‘when it comes to copyright you’re either someone who creates or a thief’ is a strawman that’s kinda on you.”
Speaking of reading comprehension:
I said, “there are two kinds of people who give a toss about copyright“.
We were talking about sentiment. You’ve made a strawman by claiming I said something I didn’t.
“Tell them that thanks to copyright a cheap wallpaper can give the one who made the pictures on it the ability to hold veto power over any video/picture that includes it and open the door to five figure fines and that support is likely to wane some.”
This is a distortion of the ruling, and the law being used. However, your example proves my point. The only time non-creators give a toss is if they might have to pay extra for a right granted under the law, even if that law is clear, long-standing, and allows for fair use. If you tell someone they will have to pay extra for an extra service or permit, they will almost always squeal, regardless of the morality, legality or reasoning. In most cases, it’s because the value of the artist’s work is dismissed.
Since the only kinds of people I come across discussing copyright law are either complaining of unpunished violations, or that it’s too punitive because they don’t like it for reasons that go no further than ‘I don’t wanna’, you’ll forgive me for not believing there are masses of people who are happy to pay for something to give back to the creator, when they could get that thing cheaper or for free if the creator’s right are ignored.
Apple didn’t succeed in getting people to stop pirating music by convincing them that the artists work deserved reward – they did it by appealing to the laziness of the average consumer. It was easier to use Apple than to piss about with BitTorrent. But Joe Public just doesn’t care about creator rights at all, until it’s them losing money.
Re: Re: Re:10
“The only time non-creators give a toss is if they might have to pay extra for a right granted under the law”
For example, when they pay for wallpaper, and are then told that they need to pay again when renting the room that wallpaper was hung in. Which is something nobody would even think was possible until confronted with a demand for more money, which would make most people reconsider making the original payment. If the owner in this case knew that he’d be sued for taking a photo to rent the property, would he have bought the wallpaper in the first place? I somehow doubt it.
“In most cases, it’s because the value of the artist’s work is dismissed.”
No, it’s because there was an agreed price that was paid, then someone got greedy and tried demanding more money for work they already did.
“Apple didn’t succeed in getting people to stop pirating music by convincing them that the artists work deserved reward – they did it by appealing to the laziness of the average consumer.”
No, Napster did that. Apple appealed to them by offering to sell them music and a per-track basis. That is, for the first time you didn’t have the choice between the pre-chosen singles and a full album, the latter being potentially $20 for the one song you wanted. Then, a combination of DRM, nonsense lawsuits and other rip-offs drove people to rent instead of buy. Less money than sales, but why jump through hoops to buy a song if you’re going to play it 3 times then get accused of piracy when you introduce someone else to the band?
“But Joe Public just doesn’t care about creator rights at all, until it’s them losing money.”
Yes, and not buying at all is still a valid option. I don’t mean piracy, I mean that if wallpaper designers are so intend on clawing money from me later, I have a reasonable enough paintbrush as an alternative. I might even pay someone to paint the wall who won’t try demanding another payment later. So, I pay money for a product, if there’s any danger of an artist suing me I have a more easily moved piece of art if I decide to hang something up, and the greedy git gets nothing.
Re: Re: Re:11
“are then told that they need to pay again when renting the room that wallpaper was hung in”
No, they need to pay again because they used photos in their advertising to rent the room, which featured the wallpaper.
“No, it’s because there was an agreed price that was paid, then someone got greedy and tried demanding more money for work they already did.”
Did you miss the word ‘most’ in what you replied to?
“No, Napster did that”
I sit corrected.
“Not buying at all is still a valid option”
Quite.
Unfortunately the people who object to copyright protection that I have the most contact with are those who will take the product without buying. I have thousands of readers all over the world who’ve never spent a cent on my books 🙁
I’m not arguing that the artist didn’t harm himself/the cause of artists with this case. At all. And he made a microscopic profit in this case, against all the harm he’s done to his commercial future.
I’ve only argued that he made a case under German law, and the German court decided not to say “christ what a greedy shit you are, piss off” because courts don’t tend to do that. The defendant tried to claim the artist had no copyright in the original art at all and hadn’t taken the photos. They both suck.
You should read the judgement. It might help you understand why they made that decision even if it doesn’t work in your jurisdiction. One thing that is all too common is people on one country not appreciating just how different legal systems are around the world.
Re: Re: Re:12
“No, they need to pay again because they used photos in their advertising to rent the room, which featured the wallpaper.”
Many rooms have wallpaper, and none of the original creators demand payment if the room is accurately depicted for rent with that wallpaper on the wall. What makes this one special?
“Unfortunately the people who object to copyright protection that I have the most contact with are those who will take the product without buying.”
Do they, or is this the projection that makes you most comfortable when defending something that’s obviously out of the ordinary? Also, what is stopping them from paying? There’s usually many factors, some which mean that they would never pay (therefore it’s not really lost income), some indicating a failure in supply (for example, if you demand 3x the market rate, or DRM that they can’t use on their device).
“I have thousands of readers all over the world who’ve never spent a cent on my books 🙁”
So does Stephen King. So do many authors who have fans who discovered them because they borrowed from a library or borrowed a friend’s book, but whose readers bought every book since.
One of the big problems with copyright maximalism is believing that every use of a product should be paid for. This has never been true in history, and attempts to block it tend to have unintended consequences. The fact is, most people consume more art than they pay for directly, the question is how to get them to do so. Demanding new payments for a product that’s already been “bought” is absolutely never the correct answer.
“I’ve only argued that he made a case under German law”
…and others have argued that it’s rather silly, counterproductive and not conducive to a decent marketplace. Legal != right, moral or effective. It’s very unlikely that the owner of the wallpaper thought about licencing when he bought it, or considered an accurate phot of a room to rent to be a misuse of the original licence.
“One thing that is all too common is people on one country not appreciating just how different legal systems are around the world.”
I can appreciate they’re different while still not agreeing with the way the verdict was arrived at, and supporting the German people in finding ways around it.
Re: Re: Re:13
“What makes this one special?”
Okay, I’ve already answered this a couple of times, so not going to explain it again. You can go to the decision and look at the images, and read the arguments for yourself.
” when defending something”
I’m NOT FUCKING DEFENDING IT!!!!
Christ. I’m EXPLAINING IT!!!!
“So does Stephen King.”
Hmm, let’s see. King sells millions of copies, so doesn’t much care how many people steal his books.
I do not sell millions. Or thousands.
Also my e-books are available in libraries, and I don’t begrudge free readers that way. I’m talking about people who download them from Bittorrent. I mean, they’re not lost sales because they don’t pay regardless, but it’s an example of how my rights mean fuck all when someone doesn’t want to pay.
“One of the big problems with copyright maximalism is believing that every use of a product should be paid for.”
Where and when have I argued that? This discussion is literally exhausting me, and I can’t fight fires I am not involved in. I just don’t have the energy.
“Legal != right, moral or effective.”
You know, I was recently actually banned off a supposedly progressive blog for saying exactly that. I haven’t argued here against that either.
“others have argued that it’s rather silly, counterproductive and not conducive to a decent marketplace.”
I’ve actually said that too in other words? Are you going to attack me for agreeing with you? 🙁
“It’s very unlikely that the owner of the wallpaper thought about licencing when he bought it, or considered an accurate phot of a room to rent to be a misuse of the original licence.”
Agreed. But ignorance of the law is no excuse, and the artist is a greedy shit who is still acting within the law as it exists. We are not disagreeing.
“while still not agreeing with the way the verdict was arrived at”
Fine. But if you just read the decision – as no one else here has apparently even attempted to do – you might understand where they were coming from. It seems disrespectful for so many people to say the court was wrong and stupid and whatever, and yet not even bother to understand the law they have to apply, or how they applied it.
Your SCOTUS comes up with decisions based on a lot less than this court used, and ones much more harmful.
Now please forgive me. I’m really, really tired, and need to stop replying on this thread for my own mental health. Thanks for talking to me about it.
Re: Re: Re:14
“Okay, I’ve already answered this a couple of times, so not going to explain it again. ”
“Christ. I’m EXPLAINING IT!!!!”
Doing a great job, too, apparently.
“King sells millions of copies, so doesn’t much care how many people steal his books.”
Well, your first failure is talking about “stealing”. It usually more complicated than that in the real world. Most readers don’t buy new copies of all their books. They share them, go to libraries, go to secondhand or charity stores. Yet, despite those things having existed for decades, even centuries, people still bought books. So, why not yours?
I don’t disagree that it’s annoying if you’re struggling and you see copies shared without you being paid, but there’s usually a reason for that.
“I don’t begrudge free readers that way. I’m talking about people who download them from Bittorrent.”
So, why? Most readers would agree an ebook is inferior to a paper copy, and formatting is generally worse than an official copy for your reader. So, let’s get the obvious out of the way – removing people who have bought from the equation (a minority, but some people do buy a copy and download a digital version for convenience), why are people torrenting your book specifically? Is it in line with the industry, or are you seeing higher than normal rates? Do people go on to buy a copy afterwards, since some people want to preview having been burned so many times? How does pricing compare to others in your field?
There’s no easy answers here, but your conduct here and what you’ve said on the subject does suggest someone with a tendency to lash out at a potential audience. Writing can be, and always has been, a hard profession and I understand disappointment if you’re seeing low sales but also pirated versions. But, there’s always reasons why people do that. Sometimes it’s because they can’t/won’t buy under any circumstance, in which case they’re not your customers. So, who are the customers you haven’t caught yet? Thinking about my own habits, there’s reasons why I might do such a thing, but they’re either because I refuse to pay full price for an author who died before I was born (obviously not applicable here), because the author is inconsistent and I disliked a previous work enough to be hesitant or because they have done things that make me refuse to support them financially. I’m not sure what applies here, but assuming you’re not just making the classic mistake of assuming that all downloads are lost sales I think there’s reasons behind it.
Since you seem to accept that someone paying once and sharing between many people is OK, what is driving people to share in a way that didn’t involve that first payment? Are you an established author with a body of work that people go back to, or are you trying to make a name for yourself?
“Where and when have I argued that?”
You seem to be getting very angry at people who aren’t paying for every use, and this entire discussion is about you defending (sorry, explaining) a person trying to get paid twice for the same work.
“ignorance of the law is no excuse”
Indeed, and I’m sure that Germans reading about this will be very careful not to make the mistake of paying artists once if they are likely to ask to be paid twice.
“It seems disrespectful for so many people to say the court was wrong and stupid and whatever, and yet not even bother to understand the law they have to apply, or how they applied it.”
I’m sure people are saying the law is stupid, in that case.
Re: Re: Re:15
“Indeed, and I’m sure that Germans reading about this will be very careful not to make the mistake of paying artists once if they are likely to ask to be paid twice.”
Quite so, as long as they are savvy enough to follow such news and able to check who a work they are purchasing a product based upon is by.
I am quite explicit when I produce anything for a client about all my personal works being CC, and any commissions being work for hire. You pay me for something, you own it, not me.
Re: Re: Re:15
Well, not just that. She’s getting angry at people for thinking that the courts are stupid for making a decision they disagree with, and ranting about how nobody cares about copyright or content creators until they’ve been personally disadvantaged. Which is still a fair point to make, but the responses she gave were basically “the law doesn’t care what the public thinks”. Technically accurate, but such a “no duh” position to make and one that sounds like the sort of bullshit we’d expect from Tero Pulkinnen, I’m not surprised other readers reacted against her in the way that they did.
But on that note – while true that copyright law cares very little for what the public thinks, and the terms dictated by copyright law are unlikely swing in favor of the public anytime soon, the conditions of copyright law are often considered so reprehensible that judges don’t go as far as what copyright law allows. No judge has actually ever gone ahead with the maximum penalty of 150k USD per infringement. And in plenty of non-copyright cases, lots of people disagree with a judge’s decision and call it stupid anyway. Like… getting unhappy because people call a judge’s decision “stupid” was a hill that nobody needed to die on, but here we are.
Re: Re: Re:12
Do you not consider it reasonable to show people what they will have to live with during the rental? Why should the artists be able to tax their advertising for renting out their property? Should the artists be able to charge a new owner of the property for that wall paper because they did not buy it in the first place?
Just how much should an artists earn for producing an image in the style of many a book on plants?
Re: Re: Re:10
Well, not just that – it’s them being sued, fined, and/or jailed for doing something as simple as sharing a song or making a backup. It might not have been likely to happen, but that’s what was talked about when the likes of SOPA was discussed.
Not everyone who disagreed with Prenda Law did so because they’re cheapskates.
Re: Re: Re:3 Google Street views
Game over, all your photos of homes are belonging to us…
Re: Re: Some judges beg to differ
Laws don’t have to conform to what Joe Public thinks.
Recently in the US, a court decided in favor of a US based company using the name Gruyère simply because the judge felt that Americans didn’t see it as an specific appellation but merely as a generic term for Swiss style cheese with holes!
Re: Re:
It’s one thing to say people should have be able to get abortions when necessary. Calling them “good stuff” on their own, though, has gotta be close to psychopathy.
Re: Re: Re:
My abortion completely changed rhe trajectory of my life. I’d call it good stuff,
Besides, there were all the Soros bucks and champagne afterwards to delebrate with.
It’s a medical procedure. Get over it.
Re: Re: Re:2
“My abortion completely changed rhe trajectory of my life. I’d call it good stuff”
People who couldn’t get an abortion had their lives changed too. Some aren’t around to tell us how. Also, banning it doesn’t mean abortions don’t happen, which is why so many countries changed their laws to allow relatively safe procedures, or alternatives such as plan B style pills or free access to contraception.
It’s not an easy decision any way people want to spin it, but removing anything other than bringing the foetus to term as a valid decision is not going to result in the army of healthy and productive babies some people think it will.
This is the problem with allowing religious black and white thinking in to law – there’s always exceptions and edge cases, and a lack of choice always leads to bad outcomes for some decisions.
Re: Re: Re:3
Make everyone atheist, problem solved.
Re: Re:
Oh, so you think dismembering babies is good? Because that’s how abortion works. Do some research rather than listening to pro-choice propaganda designed solely to make more money for the abortion industry. You need to get some help.
https://www.liveaction.org/news/infant-bodies-infanticide-attempted-abortions/
Re:
More harm than good indeed. I can only hope that one day lawmakers will remember that copyright was created to protect the public domain in the first place.
Tranformative
If the homeowner took pictures for her rental, but one of the offending wallpaper included her flipping the bird at the paper/walls, would that be transformative enough to skirt copyright?
Re:
You might be right … in the USA.
This, however, is a German copyright issue.
Congrats on winning, ya schmuck!
Instead of being flattered that someone used his wallpaper, and maybe simply asking her to credit him in her posting so he can get a little advertisement out of it, he’s gotta be a dick. What a miserable little human being.
Re: Probably not the message they wanted to send but oh well
Oh their actions certainly got them some ‘free advertising’, it just happened to be ‘Do not under any circumstances buy and/or use this person’s work.‘
Re: Re:
The beef should be with the place they bought the wallpaper from, which should have arranged for a license from the artist to allow photography in reasonable circumstances.
But because such places want to be cheap and not pay a bit extra for such a license, they don’t, so there you go.
Re: Re: Re:
Because people routinely get sued over taking pictures that happen to contain wallpaper patterns?
Are you going to insist that non-photograph wallpaper patterns don’t get copyright protections in Germany?
Was the photographer really the first copyright holder to think about suing people for taking pictures of houses that just happened to contain wallpaper based on the copyrighted work?
I have my doubts. Instead I suspect that anyone who brought up this idea before was (rightly) convinced it was a stupid idea and not to waste their time.
I seriously doubt the Cologne Regional Court got this right. If appeals are possible, hopefully this will be appealed and a higher court will overturn this travesty of a decision.
Re: Re: Re:2
Before you comment further, I think you should look at the pictures reproduced in the decision:
https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818.html
We’re not talking about a small image reproduced many times, as in eg a William Morris wallpaper.
The images are gigantic – each flower appears to be wall height:
https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818_6.png
https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818_4.png
And the first link there is probably from the apartment advertising.
So a substantial amount of the image in the ad is the artist’s wallpaper image.
Most wallpaper patterns are not of this kind, so this is not a usual case.
I am not – nor are you, I suspect – a lawyer versed in German copyright law. It seems there are very specific requirements for such a suit to be brought successfully, and the judges found they were met.
This decision may be overturned. But even under American law, you might find this case could prevail.
From the judgement:
Re: Re: Re:3 Catalog exception
In Dutch law, there is an explicit exception for reproducing a work of art (at an appropriate size or resolution) for the express purpose of offering it for sale. I don’t know the details of German law, but that would apply here, as the apartment is offered for sale, including the wallpaper.
Re: Re: Re:4
Yes, it’s impossible to realistically sell any piece of art without reproducing an image of it for the prospective buyers to see. Only the sorts of people who buy art purely as investments don’t need to see it before deciding on buying it. Anyone buying the house is buying the wallpaper as part of the transaction, ergo they need to see what it looks like.
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This is actually no different from someone buying an original artwork and then, as happens, to claim to own the right to sell photos and prints of it.
You might think it’s ridiculous, but reproduction is reproduction, and artists are one of the most stolen from creators on the planet. Maybe if there were fewer thieves, artists might be more relaxed about this kind of thing.
Re:
Utter nonsense. A picture of a piece of work in situ within a specific context is not a reproduction of the work. It cannot be hung on a wall or mounted on a plinth in the manner which the original can be. A photo of me making a silly face in front of the mona lisa is not me copying the work. It’s a photo which happens to contain it as a minor component of the composition. The amount of work it would take to recreate the original work from such a photo as a reference would be on a par with the work that went into creating the original, and it would be lacking in all sorts of details to the point where it would clearly not be the same work.
Re: Re:
“A picture of a piece of work in situ within a specific context is not a reproduction of the work.”
It really depends on how much and in what detail the work featured. The article on the reported linked in the original post said:
“A photo wallpaper was prominently displayed on one of the pictures.”
I imagine there was a lot of argument about how incidental the wallpaper was to the photo, and how transformative it was. But you can’t argue that the image wasn’t for commercial purposes.
“A photo of me making a silly face in front of the mona lisa is not me copying the work.”
The Mona Lisa is not copyright protected any more.
If you go to many exhibitions of modern works, photography is not permitted for this very reason. Of course, many exhibitions do allow photography, but they rely on the lack of ability to take marketable images with a flashless smart phone – and the fame of the artist making theft by copying and reselling the images a lot harder.
You might not like this decision but there are a lot of facts the original post doesn’t give us, and you’ll probably find there are nuances which granted the plaintiff’s side in this case, which may well not apply in 90% of other cases.
Re: Re: Re:
“But you can’t argue that the image wasn’t for commercial purposes.”
But, you certainly can argue that the wallpaper isn’t the intended focus or selling point of the commercial photo. It just happens to be in the room providing its originally agreed purpose. Lots of rental properties feature art, furniture or other items that are technically copyrighted by others, it takes a special kind of asshole to be chasing up an old client who barely spent 10 euros for more money because people can see it in an accurate depiction of the room people might choose to rent.
“there are a lot of facts the original post doesn’t give us”
You’ve not provided any that change the opinions here. In fact, all you’ve done here is confirm that copyright maximalism is a mental disease most of us would do well to get rid of, and that people should avoid at all costs doping business with those who have this disease. I, for one, will be telling people never to buy this kind of wallpaper from any source if I hear of anyone considering it.
Re: Re: Re:2
I’ve attempted to explain why the court might have come to the conclusion it did under existing laws.
I’m not trying to change anyone’s mind about copyright.
“I,, for one, will be telling people never to buy this kind of wallpaper from any source if I hear of anyone considering it.”
Whatever gets you off. It still won’t change existing law.
Re: Re: Re:3
“I’m not trying to change anyone’s mind about copyright.”
Well, good. Because this really isn’t the hill to die on here.
“Whatever gets you off. It still won’t change existing law.”
I’m not interested in changing law. I’m interested in informing people that some idiot might sue them if they share a picture of the 10 euro wallpaper they thought looked cute.
Maybe change will come later, but in the meantime protecting people from expensive lawsuits because they took a picture of a room in their own house is more important, no matter what the law says. Denying income to people who would even consider such a thing is secondary, but also important.
Re: Re: Re:4
You’d be better off finding a good argument as to why those photos were transformative or fair use.
Or how the German law is different from that in other jurisdictions in material ways.
You won’t inform people who might be affected by this, because someone who buys cheap (and let’s be honest here, really ugly) wallpaper to decorate their apartment in America, won’t ever learn about this, even if you took out an ad in the NYT.
You should be working on changing the law.
Re: Re: Re:5
“You’d be better off finding a good argument as to why those photos were transformative or fair use.”
They’re transformative because they were a picture of a room where the wallpaper was situated, not of the art specifically. They’re fair use because the thing being sold was a rental property, not the art, and the pictures were of how the room actually looked.
“You should be working on changing the law.”
If I had the power, maybe I would. Instead, I’m stuck mocking the sort of person who thinks this is reasonable even if it is technically legal. I’d rather live in a society where such a lawsuit isn’t even considered than one where it’s only the wording a lawyer uses that prevents it from working.
Re: Re: Re:6
You may be interested in the fact the court addressed your two points, though not the actual question of transformation:
“They’re transformative because they were a picture of a room where the wallpaper was situated, not of the art specifically. They’re fair use because the thing being sold was a rental property, not the art, and the pictures were of how the room actually looked.”
The burden of proof in the affirmative defence rested on the defendant here.
As for transformation, your interpretation isn’t the same as Mike’s exactly, but I think the argument against it is the same as in my reply to him. However, IANAL.
The question of transformation is not one that has been decisively ruled on in many cases, so I don’t know if there are other cases other than the Google one to support your view.
“I’m stuck mocking the sort of person who thinks this is reasonable”
I hope you don’t think I’m that sort of person. I’m perfectly down with artists protecting their rights. In this case, the artist is a prick, and the more I read the judgement, the more I understand why he got such a low award:
“The defendant is sentenced to pay the plaintiff EUR 1003.40 plus interest of 5 percentage points above the respective base interest rate since September 2nd, 2020.”
Re: Re: Re:
A more important question, is how important is that wall to renting the property, as it is a significant factor in someone deciding to rent the property for their holiday.
Re: Re: Re:
“The Mona Lisa is not copyright protected any more.”
Well, for now at least. We’ll see how long that lasts…
https://www.techdirt.com/2023/03/17/italy-decides-that-leonardo-da-vincis-500-year-old-works-are-not-in-the-public-domain/
Re: Re: Re:2
Fascist cultural elitism at its finest 🙁
Re:
Fucking copyright shill – copyright infringement is not theft.
This is a German case, but I would see it turning out the same way in the US. Fair use wouldn’t apply because commercial purpose + no commentary + not transformative. And I assume that the first sale doctrine is dead with any matters involving digital files at any stage.
Tangentially, the Pokemon Company could sue Maia Arson Crimew over her “holy fucking bingle” photograph. IDK how Switzerland’s copyright law is but my impression is that the US’s fair use statute makes US copyright law among the most permissive if not the most permissive. (I don’t mean that US copyright law is actually permissive enough. I think we need more exceptions like for photos of one’s own things.)
Re:
By “one’s own things” I mean physical things people buy (including physical copies of artwork). I also think that there should be exceptions for digital things which at least allow people to show how to use a program. The main purpose would be to protect tutorials for practical software, but I would make the definition general enough that game tutorials would also be acceptable.
Re: Re: Clarifying what I meant by definition
I mean that I would define “show how to use a program” to include game tutorials, not that games are practical software!
Re:
I think you could make a very, very strong argument for transformative and win. I also disagree that it’s commercial purpose (which doesn’t exclude fair use anyway). See: https://law.justia.com/cases/federal/appellate-courts/F3/448/605/637042/
I think in the 2nd Circuit this is clearly fair use. Might turn out otherwise in other circuits.
Re: Re:
“you could make a very, very strong argument for transformative”
There is no obvious transformation from the licensed product by the house owner in these images:
https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818_6.png
https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818_4.png
Other than putting furniture in front of them. If these are what the house owner used, then it’s very hard to argue that the use was limited to that considered fair use or that it was transformative* in any way. It’s also commercial use since it was advertising.
It’s an unusual situation and unusual wallpaper.
*I’d be interested to know what, from this definition in Australian law which uses the American definitions, you feel the use of these images meets this definition:
https://www.alrc.gov.au/publication/copyright-and-the-digital-economy-dp-79/10-transformative-use-and-quotation/transformative-use-and-fair-use/
This, in particular:
“The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.”
It’s really hard to see how an image used by license to create wallpaper, is transformed by that wallpaper being put on a wall.
Re: Re: Re:
This is ‘people getting sued for posting pictures of their tattoos on instagram’ levels of silly
Re: Re: Re:2
Well, then we get into the madness of professional wrestlers not owning their own bodies…
Re: Re: Re:
The purpose of the photo in question is to promote the apartment for the purpose of renting it out. It is beyond unlikely that the photographer had that purpose in mind when taking a photograph of a tulip. Thus, the use is transformative as it is for a completely new and unrelated purpose to the original.
Re: Re: Re:
There’s a bed in front of it.
Re: Re: Re:
Transformative use does not mean a change in the image. It’s a difference in purpose for the images. That’s why Google scanning books was allowed. It wasn’t changing the books, but it was using the content for a different purpose (scanning and searching, rather than reading). Here the purpose of the picture was not to sell the picture but rather to decorate a home, which is textbook transformative use.
Re: Re: Re:2
“Here the purpose of the picture was not to sell the picture but rather to decorate a home”
But the artist had already implicitly permitted that use in the license it gave to the company which made the wallpaper. If the homeowner had bought a framed print from the artist, that would also hold true. You’re not transforming the print by hanging it up.
There was no further transformation when the homeowner simply reproduced the image as it was on his wall.*
Per your example, isn’t it more like Google was allowed to scan the books for searching/scanning, but then turned around and sold copies of the scans?
Anyway, thanks for answering my question, even if it raises more questions.
*I just scanned through the judgement to see if the issue of transformative use was considered. Doesn’t seem to have been. The arguments about what was licensed and what was implied to be licensed etc are all rather dense and IANAL and using Google translate. But the court really went through all the possible defences on the basis of implied licenses etc, so they weren’t ignoring this aspect by any means.
I don’t think this helped: “As a precaution, the defendant denies that the plaintiff actually – as alleged – took the photographs of a tulip himself and is the author of these photographs, and that the plaintiff still has the copyright to this photograph.”
Re: Re: Re:3
This seems like such a strange hill to die on. Transformative use is a US fair use concept, not German, so it doesn’t apply there. Though I was responding to someone doing a US fair use analysis. However, the transformative use standard in the US makes a lot of sense, because it would bar crazy results like here where you can’t show a picture of your own home.
I’d argue that this entire interpretation of copyright law is nonsensical. The artist is not losing any money here: he licensed his work to the wall paper company. No one is now not going to buy his artwork because they saw a home offered on a site. Indeed, it might cause more people to find out about him and his works (and the wallpaper).
Re: Re: Re:4
“This seems like such a strange hill to die on. ”
No hill, not dying. Just trying to understand the concept. Remember, I’m coming from the fanfiction world where people are still not sure that making up new stories using loose interpretations of other people’s characters, count as transformative enough to protect them from being sued under US/Australian law. It’s the reason the Organisation for Transformative Works exists.
“However, the transformative use standard in the US makes a lot of sense”
Agreed. What I would like more clarity on, from someone qualified to comment on the matter (like a lawyer, no insult intended), is how this case would be seen. If Disney was the ‘artist’ in this case, I have some doubt the result would be different.
Too much depends on how much you are prepared to spend on lawyers.
“I’d argue that this entire interpretation of copyright law is nonsensical.”
If you’re claiming the German court didn’t understand German law, you’re going to need to offer a reason for that assessment.
If you mean it’s counterproductive for the plaintiff, agreed. Reading between the lines, it looks like there was some really bad blood between the two sides – the defendant actually took the wall paper off the walls after the plaintiff contacted him, but I think kept using the photos in the advertising.
It also took ten years to reach this decision. No one ‘won’, as is too often the case.
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It’s really hard to see how an image used by license to create wallpaper, is transformed by that wallpaper being put on a wall.
https://smartloaded.com.ng
Yeah!
Make wallpaper illegal!
I hate wallpaper!
Up next … home owner sued for color of paint on living room walls. Apparently that color is trademarked.
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Oh, they better not use magenta…
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https://www.thecollector.com/vantablack-anish-kapoor-stuart-semple-controversy/
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That wasn’t a copyrighted (or trademarked) color, it was a patented material. Anyone could (and did) make an indistinguishable color out of different materials. Close, though. Owens Corning’s trademark on pink would be a better hit.
https://secureyourtrademark.com/blog/owens-corning-pink/
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I was just pointing out that people do sue over colour.
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And I was pointing out that that issue wasn’t about color. Anyone could have used that same color, as long as it was produced by a different means.
I’m not buying this. The story is missing something. To believe permission would be required, is akin to believing visitors would also require permission in order to look at the wall in the room. If the wall is visible through a window, then folks driving down the street may require permissions to glance that direction. This story collapses under its own weight, it needs some supporting info.
Does Anyone Think...?
Does anyone think that this is simply a visual version of the dancing baby or the music playing in the background of a posted video, or the advertising that is visible in a street sign?
I would agree that posting a picture that is essentially the artwork would be a violation – but if it’s a wide view of the room, with furniture, drapes, carpet, etc. and an incidental piece is the pretty wallpaper on one wall, then it should be transformative and allowed. Or else the sofa designer, the rug designer, the architect who designed to front of the building, would all have a claim, and nothing could be posted that was not an original creation or so historical as to be public domain.
Just Wait
Remember when the police tried to use copyrighted music to prevent you posting recordings of the….just waittill you see your local police officer show up dressed in clothing with a copyright protected image! And now you won’t be able to post the video/pics you took of the police.
Photos of artworks
If you’ve ever watched any of HGTV’s multitude of home renovation shows then you’ll know this isn’t anything new. The shows almost always fuzz out any artwork shown in the videoes. Also any bookcases have the books shelved spine in so the title can’t be seen. Also, there might be a pitcher of lemonade on the table, but never a can of Coke or Pepsi.
Copyright as a concept is important so that artists can get paid for their work. But Copyright as implemented in the US and the EU is a bloated mess that just prevents ordinary people from doing ordinary things. Take the number of people sued for sharing pictures online of the Christ the Redeemer statue in Brazil.
Re: HGTV
Yes, media companies – particularly in the USA where the winner still pays his own lawyer bills – will go to great lengths to avoid lawsuits, since even a fair use defense costs a decent amount of money. Remember the RIAA suing because a radio was playing in a public area of a business? Oddly enough, there are American lawyers who will happily file nuisance suits in the hopes of danegeld – being paid to go away. In that atmosphere, “better safe than sorry” is the rule. it doesn’t mean coverup/blurring necessary, just prudent and cheaper.
I suppose it doesn’t happen for minor issues like wallpaper in real estate photos because the payoff would not be worthwhile. I assume in Germany, the law is the loser pays the winner’s lawyer bill, making it a double payoff for both artist and slimy lawyer.
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Is it, as it is a recent development in the history of man. For about the first 250 years of printing authors had no copyright, and had to get permission from church or state to have their books published. Earlier than that, one of the advantages of going to university was access to the library so that the student could copy, using pen and paper, the reference books for their chosen subject. Indeed if anybody was paid for a copy of a book, it was not the author, but the scribe who laboriously mad a copy.
Solution
Open source wallpaper for the win!
Quite interesting
I found your article on the Copyright dispute involving Adobe Firefly AI to be quite interesting. It’s always surprising to see how far-reaching copyright issues can be, and the case you described from Germany involving photo wallpaper is a prime example.
The idea that the photographer could demand further permission for displaying an image of the wallpaper online seems like a particularly extreme interpretation of copyright law. As you mentioned, it could have important ramifications for anyone taking pictures of furnished rooms or other items that create an atmosphere.
It’s a shame to see copyright maximalism continuing to encourage such absurd rulings by courts. I think your article does a great job of highlighting this issue and bringing attention to the need for more reasonable copyright laws.
Thanks for sharing your thoughts on this topic!
Thanks for sharing. It is very helpful for me and also informative for all those users who will come to read.