by Mike Masnick
Wed, Feb 13th 2008 8:38pm
There's an interesting discussion going on over at William Patry's blog, questioning whether or not a photograph should be considered a "derivative work" of the object or objects in the photo. The courts appear to be somewhat split on this. The importance of this concerns whether or not the photograph itself can be covered by copyright -- and also whether or not the photograph can be considered infringement itself. If the photo is considered an unauthorized derivative work, then it's entirely possible that whoever holds the copyright on the object in the photo could claim that the photo itself is infringing. Remember, in the past there's been some concern about the legality of photographing copyrighted sculptures. A derivative work is supposed to be for something that "recast, transformed, or adapted" the original work, and is normally used for something like a translation of copyrighted material. However, does a photograph really recast, transform or adapt the object? Or is it an entirely separate work?
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