Sometimes Photos Are Just Facts, And Copying Is To Be Expected

from the knowledge-spreads dept

Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant:

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.

But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.

So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.



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    ChurchHatesTucker (profile), May 4th, 2012 @ 6:49pm

    Nice

    It's nice to see a photog who gets that what they are doing is essentially copying to begin with. Yes, yes. Framing and choices etc. But by that same token anyone who does that to their work is deserving of the same consideration.

     

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    Anonymous Coward, May 4th, 2012 @ 7:37pm

    the guy who drew the skecth, actually created something

     

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      Judged by His logic , not mine, May 5th, 2012 @ 2:54am

      Re:

      but...The sketch could never have existed without the original image.

      The verdict...

      The Guy who took the photo should be the only one to profit.
      and... He must give ALL the profits to his ancestors.(even dead ones(bury the cash in their coffins))
      After all.... He "could never have existed without them"

      Case closed... NEXT ?

       

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    Anonymous Coward, May 4th, 2012 @ 7:40pm

    omgwtf

    the shading and light reflection are completely different between the two pictures as is the gaps between the ant legs.

    just because the are both ants doesnt mean one is a copy.

    stupid article.

     

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      Chronno S. Trigger (profile), May 4th, 2012 @ 7:45pm

      Re: omgwtf

      Copy or no, that wouldn't stop some people.

      You know, you could try constructive criticism some day. It may help your case instead of making you look like an ass.

       

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      Leigh Beadon (profile), May 4th, 2012 @ 9:01pm

      Re: omgwtf

      the gaps between the ants legs are not at all different. i even superimposed them in photoshop to check - the figure is a perfect match down to the fraction of a millimetre. all the lines of the segmentations/marks on the body match too. there is no doubt that at least the basic structure.

       

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        Leigh Beadon (profile), May 4th, 2012 @ 9:02pm

        Re: Re: omgwtf

        there is no doubt that at least the basic structure

        * ...was traced/very closely copied

         

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        The Aardvark, May 5th, 2012 @ 10:33am

        Re: Re: omgwtf

        Sorry Leigh but to say it matched up perfectly appears to be incorrect. Look at the ants right hind leg, on the end. Also the angle of the left hind leg is different as well. Subtle differences that should have been clear in PS.

        "All things considered, I’d prefer to decorate my wall with Mr. Stermer’s version rather than my original field-guidey shot. It’s nice. The script adds a certain NeoVictorian flare." - Then STFU Alex. Next time ask the ant to do a sexy pose, or invite him back to the studio. How much did the subject get paid?


        Gotta get that ant!!!!

         

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          Leigh Beadon (profile), May 5th, 2012 @ 1:37pm

          Re: Re: Re: omgwtf

          Where the photo gets blurry on the back leg, the illustrator has filled it in. I am looking at it in photoshop right now - there is one small spot on the body where the edge appears to be different, and the other leg also appears to have a slightly different curve, but in both cases when superimposed you can see that isn't the case - it's just a matter of how the new figure is shaded.

          Anyway, if you have any doubt that it's a direct copy, that's fine. But to me it is entirely clear that it is. When the size and orientation is matched, virtually every detail is identical - the segmentation lines on the body, the location and size of the eye, the angles of the antennae, and the angles of all the legs. It's absurd to suggest that it wasn't copied.

           

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      Atkray (profile), May 6th, 2012 @ 10:49pm

      Re: omgwtf

      So 3 notes in a song and you are ready to yank someone's internet access, but a clear case of copying (and I have looked at it carefully and agree it appears to be a copy) that doesn't fit your "but Piracy" model and you brush it off?

      How convenient for you.


      Ps. it's omgwtfbbq

       

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    jupiterkansas (profile), May 4th, 2012 @ 9:11pm

    He could just praise the artist for his incredibly impressive photo-realistic drawing skills, and maybe even a lasting friendship will form?

    Why must everything be a contest for money?

     

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      The Groove Tiger (profile), May 5th, 2012 @ 8:47am

      Re:

      "maybe even a lasting friendship will form?"

      He'd probably need an Ouija board for that 'though.

       

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      tenebs, May 6th, 2012 @ 8:58pm

      Re:

      When the photographer makes a living through his photography, spending the time to search for, photograph and identify the ant he deserves compensation or an acknowledgement and a simple request for permission but when permission was not asked I request a takedown. I've had images stolen as well. If the offender would have simply asked I would have most likely granted permission. I have never denied permission for a research or educational request and only request that I am given credit and a link to its use if online.

       

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        Mike Masnick (profile), May 7th, 2012 @ 1:14am

        Re: Re:

        When the photographer makes a living through his photography, spending the time to search for, photograph and identify the ant he deserves compensation or an acknowledgement and a simple request for permission but when permission was not asked I request a takedown.

        While you may have a point about the niceties of asking for permission, it's at least worth noting that copyright does not care about the time one spends doing the work. This is the "sweat of the brow" argument for copyright, which has been *explicitly rejected* under US law. US copyright law doesn't care how much time or effort was spent. It only cares about the unique creative choices made by the creator in the work.

         

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          jupiterkansas (profile), May 8th, 2012 @ 7:50am

          Re: Re: Re:

          And if it's sweat of the brow you're arguing for, I'm sorry but finding the photo and drawing that ant took far more time and work than taking the photo.

          The image was not stolen. It was copied and transformed into an entirely different medium. Look up close at the original drawing and you will see it's not a photograph at all, therefore not a copy.

          I realize photographers have to make a living. This drawing does not diminish the value of the photo or the photographer's work. It would be real infringement if they used the actual photo to make money, but they didn't.

          Besides, what if the photographer was unknown, or had been dead for 25 years? How would the artist ask permission then?

           

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    Anonymous Coward, May 4th, 2012 @ 9:19pm

    Is it so hard for a copyist to contact a photographer, compliment him on his photograph, explain what he would like to do, and then ask if the photographer would have any objection to using a derivative of the photo in another work (with full credit, of course)? Of course not, but why even bother with such a simple courtesy?

     

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      Anonymous Coward, May 4th, 2012 @ 9:48pm

      Re:

      What?

      And open himself to treble damages?
      Copy don't ever say anything to anybody and never ever credit somebody else since derivative works are also infringement and acknowledgement of taking inspiration from something can be construed as making a derivative work or the very least a very expensive day in court.

       

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      Matt, May 6th, 2012 @ 11:06am

      Response to: Anonymous Coward on May 4th, 2012 @ 9:19pm

      The author makes a valid point, but misses the mark in the sense that I have a strong feeling Alex would wholeheartedly advocate the use of his work for the sole purpose of knowledge dissemination, but that us not what the sketch artist was doing. They actually profited from Alex's efforts, and as such, it's not too much to expect that Alex should receive a small acknowledgment, if not payment. An a simple google search for "Alex Wild entomologist" leads to his website and contact info. Email him a useful request, I bet you he will reply pretty quickly, and be pretty darn nice about it.

       

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      jupiterkansas (profile), May 8th, 2012 @ 10:43am

      Re:

      It is hard, if not impossible, if the photographer is dead, or not known. What if the image was taken in the 1950's and appeared in a magazine advertisement or science textbook? Do you want to track down the photographer? And those are cases where finding the photographer would be possible because it was published? What if someone scanned an old photo they found in a shoebox and put it online, and then a dozen other people copied it onto their website before you found it? Are you prepared to track down the photographer just to ask permission to make a drawing?

       

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    Esahc (profile), May 4th, 2012 @ 9:24pm

    Seriously?

    There are only so many ways to portray an image of a black ant. Does the original photographer thinks that image is original? Lets see what happens when I use google: http://goo.gl/dzhzd

     

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      TtfnJohn (profile), May 5th, 2012 @ 12:36pm

      Re: Seriously?

      Its not simply a black at it's a previously unknown or unrecognized species of carpenter ant which is what makes the photo so valuable as basic knowledge in Wild's field. And yeah ants are among the most successful species on the planet AND most of them are black. From that perspective so what?!

      Wild has said in his piece that he wouldn't have withheld permission in any event which removed the triple damages threat.

      While the drawing is a copy of the ant from the the photo it's also transformative. Wild says as much and leaves us with the question of is this fair without acknowledgement? Copyright or no copyright. Wild also says this goes on a great deal of the time where artists in other fields take a photo and build, say, a drawing from it. And does this cross the murky line. Fair enough because the line IS murky. And then he goes on to say that photographers and other visual artist ought to be finding a way to re-enforce each other rather than get into this kind of counter productive spat. Wild is right there as well. If for no other reason than someone how does line art illustration may see things in a photo that the photographer doesn't and bring them to light to the benefit of all.

      This is the sort of instance where IP purists would insist on ownership as the be all and end all rather than admit that there IS something that an illustrator can bring to a photo that the person who took it can't see which adds to the body of knowledge about the subject of the photo.

      Beautiful though that isn't the case here the drawing itself is beautiful in how it highlights colours and lighting not present in the photo. And the the transformative lettering and fonts add to the photo rather than take away from it. Wild thinks it crossed the murky line where credit is required and I agree. I'd have given it in the same way one does in a bibliography. If I'd been the LA Times or the artist I'd have cussed the day the *AA's talked law courts and legislators into triple liability for all situations including academic and reporting purposes. It's just plain silly.

      Personally I'd have credited the photo and Wild but that's just me.

       

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      Ilfar, May 5th, 2012 @ 9:16pm

      Re: Seriously?

      You get a disturbing number of penguin photos... o.O

       

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      BrianC, May 15th, 2012 @ 4:59pm

      Re: Seriously?

      I can't help but notice how many of the search results are photos taken by that same artist

       

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    dr Evil, May 4th, 2012 @ 9:41pm

    ants in my pants

    you can't bother with the common courtesy of attributing the photographer - because then they can sue you using your own presentation against you - "see!", you can say, "they admit right here that they are using my work". so what choice do you have?
    be proud that your photo was the source for this dirivative work and move on. (slightly different situation: I created a drawing of the device I used at work for a few select customers, my employer put that drawing in a book about that device. I'm proud, not pissed. )

    Imagine a world where God sued over his copyright.

     

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    Carl, May 4th, 2012 @ 11:50pm

    We might also argue that your opinions are not original and that your work may be plagiarized freely without any credit or compensation offered to you. Certainly there is no artistry or originality to what you write. Your work is merely a rearrangement of linguistic elements you did not create.

    It's unfortunate that so many people think as narrowly as you do and readily dismiss the value of work done by others.

     

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      Leigh Beadon (profile), May 5th, 2012 @ 9:42am

      Re:

      We might also argue that your opinions are not original and that your work may be plagiarized freely without any credit or compensation offered to you.

      This is the mark of someone who has just showed up at the site. You think you've got a big "gotcha!" that's going to make me defensive, but I'm afraid you're going to be disappointed.

      If someone copied my post wholesale, word for word, took my name off it, and claimed it for their own? I'd be annoyed, yeah. But if someone just re-wrote my piece, following the same facts in the same order, but in their own words? That's FINE! I don't own the facts I've reported here. I don't even really own the opinions I've expressed here. Anyone is free to appropriate and transform those - go for it! And if their version of the story turns out to be more popular than mine, good for them! I'll try to figure out what they did that I didn't.

      And that's the equivalent of what happened with this photo.

      So sorry Carl - you're the one thinking narrowly. For example, I don't "dismiss" the value of Wild's work - I can tell it has tremendous value. But just because someone creates value doesn't mean they get to control every single piece of additional value built on top of that - it doesn't even necessarily mean they're going to get credit every time. Indeed, if we believe that you need permission from Wild to do anything with his photos, then suddenly they are less valuable.

      You need to get past the knee-jerk reaction of "he made it, it's his!" and realize that there is much more nuance here. Even Wild himself realizes that: he feels this instance crosses the line but says how it's not clear-cut and there are many types of copying that are okay and essential to art.

       

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        jupiterkansas (profile), May 8th, 2012 @ 7:55am

        Re: Re:

        Actually what they did with this photo was like taking your post and carefully recreating it on paper in pencil to look exactly like it appears on the computer screen, and then claiming credit for the drawing, not the content of the drawing.

        I'd be pretty impressed with that.

         

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      Cowardly Anonymous, May 5th, 2012 @ 1:32pm

      Re:

      The whole is more than the sum of its parts. -Aristotle.

      Copyright is designed to apply in situations where this quote also applies. That can be due to the emotion evoked by the careful arrangement of artistic techniques or the emergent behavior of a working sample of code. The greater this effect, the greater value we assign to a work.

      Once we begin to only copy elements of a work, we lose that summation and gain a new one. Clearly this new sum has a new value, which will eventually be additive to the total value of the public domain (provided copyright is functioning properly, see Micky Mouse curve for where this has gone wrong).

      The purpose of copyright is to increase the sum over the value of all works in the public domain. As such, works that create a new whole to add to this should not be blocked by copyright. However, in order to encourage the creation of new works, copyright theory states that we should provide an artificial period of monopoly to the benefit of those who create works.

      Note that optimizing copyright theory seeks for a narrow copyright law, to ensure that public domain works won't eventually prevent copyright from applying to any work. Further, a minimal monopolistic period ensures that works move into the public domain while still relevant and likely to spark works that must, unfortunately, fall within the narrow bounds to ensure that the incentive is functional.



      Playing with brightness, color contrasts and other effects could potentially give rise to a whole host of works directly derived from the original photo.

      If such works were allowed by copyright law during the monopolistic period, the reservations would be reduced to such a minimum that no incentive would come from copyright.

      However, barring this simple manipulations (where no elements are changed, only enhanced or de-emphasized) is a substantial incentive for any good work, where the sum of those particular elements is difficult to match.

      Widening this scope is more harmful in what it blocks than it is beneficial as an added incentive.

       

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    G Thompson (profile), May 5th, 2012 @ 12:37am

    Let me get this straight.

    A photographer takes a photo and publishes that photo and retains the copyright on the actual photo.

    Someone likes the photo so much that they actually DRAW and highly TRANSFORM the subject of the photo (the ant) and also remove the background, context, orientation and other unique aspects of the original photo.

    The original copyright owner of the photo is, whilst nice about it, still questioning whether it was infringed upon.

    WTF!

    Does anyone not see the absolute stupidity of the above reference to infringement in that it basically assumes that no-one else has ever photographed an ant in the same way, no one else has ever drawn an ant. Seems the whole school of art needs to be aware that still life drawings, sketching of photos/art, and transformation of nature and culture, not to mention inspiration from other works, etc needs to be stopped because it is just Theft *eyeroll*

    .._!

     

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    Tim, May 5th, 2012 @ 1:17am

    Wrong

    This article is 90% wrong.
    What if the photographer had set up a simple red light over the ant? Or a blue light? Or a green light? What if he'd laid a couple of twigs in the background? All these are simple choices; if, at some point, it's going to be regarded as "creative" and "worthy" of copyright, then it must also be respected that the choice to aim for a representative straight shot is also worthy of copyright.

    And: the hairs come to different levels up its abdomen in the sketch and the photo. Its back feet look different, and one of its antennae has more emphasized sawtooth-shapes. Now remember that copyright is fluid in that, while a result may arise entirely from an existing image, if "sufficient" manipulation has been done to render it substantially different, the copyright-breach goes away.

    The 10% where this article is not entirely wrong is to raise interest in the fact that copying (in breach of copyright) does require work. This has more interesting ramifications for, say, p2p sharing of mp3 files - when the MPAA come knocking, remember it's costing you to boost their publicity.

     

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      Leigh Beadon (profile), May 5th, 2012 @ 9:47am

      Re: Wrong

      I'm not sure I see the point you're trying to make. Your first paragraph seems to be claiming that this is infringement, and the second seems to be claiming it's not.

      In any case, I completely reject your opinion that there are copyrightable elements that were copied here. The only thing copied was the subject. The decision to photograph it plainly does not count as a copyrightable creative element. If that were true, every tourist who has ever been to Mt. Rushmore has infringed on every tourist that came before them. The guy who took your passport photo could sue the guy who took your driver's license photo.

      It just doesn't work that way.

       

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    Beech, May 5th, 2012 @ 1:21am

    Well, i don't know much about ants, but maybe thats just the way they stand? I mean, how hard is it to get a picture of a person with the "angle between their legs" exactly the same as another person? Maybe the guy took a picture of his own ant, then did his drawing off of that? I mean, not like anyone could tell one ant apart from the millions of others that live in the same colony. It would be like me taking a picture of someone in profile, and then Alfred Hitchcock's wondering if I copied him (assuming we were as good at distinguishing between people as we are with ants).

     

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    DMNTD, May 5th, 2012 @ 1:52am

    sigh

    There has to be an OBVIOUS point of contention when a skilled drawer etc can just replicate what you took with a machine..grow the fuck up.

     

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    Anonymous Coward, May 5th, 2012 @ 5:48am

    This show once again how hopeless all the IP wrangling is. There are no real trolls in this thread(yet)and still there is no real agreement on whether this is "copying", "infringement" or just fine. Every such example just leads to endless "how many angels can stand on the head of a pin" debates. There is simply no way a clear standard can defined. And by clear I mean a standard that allows a person to reliably determine beforehand whether or not what they're doing is legal. I used to be on the other side of this debate, but I'm now convinced copyrights and patents have to die.

     

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    Pink floyd, May 5th, 2012 @ 9:58am

    lol

    "The sketch could never have existed without my original image"

    WRONG instead of using your iamge the artist could have sat near an ant hill and in time got a good likeness to draw one.

    WHAT the image does is allow a far mroe efficient use of time by said person drawing as you dont have to keep looking at ants scurrying.

    SO as this is a case of JUST saving time does that mean the time saving = bucks to the photo guy ....maybe if the artist is getting paid for how quick he can sketch stuff....

    MY ideal on it all is that copyrights are just censorship and control now. THE photo guy prevents you form copying or deriving unless money goes to him , thus the cheap free way is as above and in the end the non efficient way ends up being more efficient cause its costs less financially.

    have a nice day

     

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      Leigh Beadon (profile), May 5th, 2012 @ 10:13am

      Re: lol

      I agree completely. However, I will say, let's not be too hard on Wild. His post makes it clear that he's very open-minded about this stuff, and while I don't think he's right in his reaction here, it's just an honest initial reaction that he's ready to discuss and hear other opinions on. He also makes no mention of copyright or of legal remedies. He's not trying to censor anyone or really actually exert control - he just thinks he deserved some control and credit in this situation. I disagree, but he's not being an asshole about it, and that's awesome considering how some photographers react to being copied.

      I hope Wild will read this post and perhaps reconsider his reaction. If he seemed like the kind of guy who had a closed mind, or if his post had been an angry tirade threatening to sue, then I would have written a much harsher response. I'm quite glad that wasn't necessary.

       

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    Anonymous Coward, May 5th, 2012 @ 2:52pm

    If he used the photo directly would that be copyright infringement?

    If he scanned the photo and used it as his own would that be copyright infringement?

    Isn't tracing just another (manual!) form of scanning really?

    I don't care about whether you believe that using somebody else's work should be free whatever, I am just taking issue with the logic of a drawing of a photo isn't the same as a photocopy of one.

     

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    McCrea (profile), May 5th, 2012 @ 9:25pm

    Total Infringement

    The photographer completely infringed on the implied copyright of God, on two counts.

    First, the image that was captured on film was of a object created by God on a background created by God.

    Second, the image of the first post was only possible after the image was recreated by the ocular device created by God and chosen to be worthy by the processes of a brain created by God.

    The only possible conclusion is that the photographer owes God two dollars.

     

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    Kevin (profile), May 5th, 2012 @ 10:37pm

    Can't claim

    There is no way a photographer can win a case of anyone using a photo of any publicly available scene. Any reasonable photographer can take a similar photo, manipulate it to match the alleged copyright one and claim legally that it is an original work.
    Any photo taken inside a building may well be claimed by the building's owner as their property.
    The only photos that could stand up over a "stolen" claim would be one of individual/s, inside a privately owned structure with permission of the structure's owners of of his/her own self or property.
    Even photos taken inside a national park could be deemed to be owned by the owners of said park ie Governments.
    Photos taken withour permission inside say Disneyland are either banned or deemed the property of Disney.
    If I am in the range of a photo taken of a scene where I did not grant my permission then I could claim ownership of that photo, painting or whatever.
    So photographers don't waste your time litigating because in most cases you cannot win.

     

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    Vic, May 5th, 2012 @ 11:11pm

    The precedent EXISTS! Use it...

    Great! It's the second "Obama Poster" case. The photographer should use the existing precedent ruling! Let's bring all copyright cases to their ridiculous perfection!

     

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    Anon, May 6th, 2012 @ 3:30am

    The sketch could never have existed without my [......] taxonomic expertise in identifying the species.


    Sweat of the brow. You get no rights on that.

     

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    Eevin, May 6th, 2012 @ 8:13am

    I think that many people are underestimating the difficulty of taking the photo. Ants are messy subjects, they are really small and move a lot. And even if you manage to get the ant in focus that doesn't means the photo will be useful. Most ants look alike at first glance, but they are not. The difference between one ant an an other is in the little details, and making those clear requires technique and creativity. Art is about expression, about communication, and showing the 'facts' that are not obvious to everyone is art.

     

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    Alex Wild, May 6th, 2012 @ 9:11am

    Thanks for covering this story. I blogged it myself not because I was particularly angry about being copied in this instance (it's an old photograph that is, as you point out, functional and not terribly inspired, especially compared to Stermer's derivation), but because it raises these issues of what, exactly, copyright covers.

    The argument of whether an image is intended as factual documentation or as a creative work I see as a red herring. In either case, the work serves a downstream economic function- whether as an illustration for a newspaper, a photograph in a field guide, or an advertisement for a pest control company. The ants themselves aren't serving that function. It is the image that does so.

    The purpose of copyright is to foster creative works in a way that benefits society: artists, inventors, and other creatives must pay the rent, otherwise they'd be working other jobs and not creating. In theory we all benefit.

    Many of my photographs would not exist if I had to work a day job. Planning field expeditions, processing photographs, researching the identification of the subject, and maintaining a website all take time and money. Copyright law is part of the equation that allows me the resources and time to create the images.

    This isn't to say that copyright law isn't abused and in need of reform. It is, in spades. But it needs to be altered in a way that still ensures production of the primary creative materials.

     

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      Leigh Beadon (profile), May 6th, 2012 @ 11:30am

      Re:

      Hi Alex - thanks for commenting! I really appreciate the position you seem to take on this: you're arguing for the level of control you feel creators genuinely need, not just total control over everything, which is exactly how copyright should be constructed. We badly need more artists like you.

      I still don't agree on this particular photo though, I'm afraid. The distinction between a creative work and factual documentation is anything but a red herring: it's a central distinction in copyright law. Indeed "facts" is the first thing explicitly listed as NOT covered by copyright by the Copyright Office itself. I also feel, as I said in the post, that this is not just a legal detail - it's an essential distinction.

      The challenge is in drawing the line between the fact itself and the expression of the fact. The latter is what's covered. And yes, your photo is your expression of the fact, which is the appearance of the ant. The copyright in a photo consists of the sum of all the creative choices that went into the photo: the angle of the shot, the framing of the shot, the focus, and all the other decisions a photographer has to make - but not the subject of the photo. And the sketch only copies a fraction of those choices, and contains all sorts of new expressive choices that the illustrator had to make to create his version. Thus I think, both legally and personally speaking, that it is a transformative work - a new creation, in a new medium, with new creative expression, that doesn't infringe on your original.

      I really don't think this is the kind of thing copyright should cover. I also want photographers to have the protection they need to avoid getting taken advantage of, but I don't see that here. If, for example, some big stock company sucked up all your images, took your names off them, and started selling them and prices that undercut yours through their well-established channels, thus completely preventing you from capitalizing on them yourself - that's where copyright law should step in to do what it's supposed to do, which is give creators a fair (and advantageous) chance to compete in the market with their creation and monetize it for themselves.

      I do think you have a couple red herrings though. Remember that copyright law does not recognize sweat of the brow or expenses - the effort and money you spent to create an image does not impact its copyright status. A lens is a physical tool that you are purchasing, not a piece of knowledge - and you will note that Canon does not claim copyright over your photos even though they could not have existed without its tool to focus the light. Nor do the guides or crew you hire to go on expeditions - even though they too expended considerable effort to make the photo possible.

      So when I talk about it being a mere fact, I think that's very important. Let's say instead of a photo, you launched an expensive expedition and came back with a detailed written description of the species with thorough measurements—and it was a very well-written description. Your copyright would allow you to prevent others from copying your words wholesale and republishing then - but it would not prevent an illustrator from reading your words and drawing his vision of the ant based on them. Even though you collected the facts, you don't own them, and others are free to use them without paying or crediting you. In this case, I see the photo as essentially a very very detailed description - and I think the illustrator's work is just as transformative and non-infringing as it would be if he was working from a written description.

       

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        jupiterkansas (profile), May 8th, 2012 @ 8:16am

        Re: Re:

        Photo-realistic artists make their drawings from photos. I don't think that's news to anyone. However, I don't think any photo-realistic artist will agree that what they do is infringing even if they didn't create the photograph, because what they are doing is completely transformative. They are using drawing techniques that mimic photographs. Look at the original close up and you won't see an ant at all - just pencil and paint.

        Personally, when I look at those two images, I see very little similarities.

         

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    Anonymous Coward, May 6th, 2012 @ 9:18am

    This is about information; specifically the loss of information. Scientists tend to be a bit touchy about uncredited copying. Not because of the big $$$ lost in the lucrative field of ant photography, but because the illustrator does not know, for example, the location of that ant colony. (Or if the illustrator knows, is reluctant to be specific to avoid charges of plagiarism).

    For a researcher, unreferenced material is essentially useless. If the illustrator properly cited the source photo, a researcher could then contact the photographer/entomologist for more information.

     

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    Alex Wild, May 6th, 2012 @ 9:50am

    "...this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all."


    A more blunt clarification of my position is to note that Cannon doesn't accept "proliferation of knowledge" as sufficient payment for the lens that took that photograph.

     

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    Alex Wild, May 6th, 2012 @ 10:13am

    Plus, I am now copyrighting my mispelling of "Canon".

     

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      Anonymous Coward, May 6th, 2012 @ 11:14am

      Re:

      Ha! Cursed lack of editing tools!

      This seems to be more of a situation where I have rendered a drawing of a Canon lens for whatever reason, rather than needing to gain permission or pay a royalty to do so. I've drawn countless still lifes and have never done either, never thought to do it nor was I ever instructed to, I made a drawing of some stuff, the drawing was the work of my hand, eyes, and brain and that seemed to be the end of it. But I revel in obscurity. ;)

      I honestly don't see how the illustration can be considered a copy of your photograph any more than my drawing of a Canon lens would be considered a copy of the lens. A copy would be an exact duplication, which is what copyright is about, yes? Controls on duplication of the specific copyrighted work in its specific fixed and tangible form, subject matter not withstanding.

      I believe in attribution wholeheartedly - it is the most common of courtesies and keeps the timeline, the history of works and what they were built upon. But as stated in several posts above, the way copyright claims are used as bludgeons and silencers and threats anymore I can absolutely understand the fear of doing so. While you seem a reasonable person, how am I to tell that anyone else will be? That they will respect what I'm doing as creating new art using theirs for reference instead of ripping them off? There's far too much of that attitude on show these days for people to feel safe even asking to fulfill a simple courtesy - and really, considering fair usage rules in the US, asking shouldn't be necessary anyway. It should be the easiest thing in the world to do - give credit where it's due - and even THAT is being chilled by overzealous copyright ab/uses.

      In fact, fair usage doesn't seem to be considered at all in too many copyright infringement claims. Always struck me as odd, as if fair use only applies when the plaintiff does it but not the defendant.

      I've gone on a ramble, but this seems simple to me: you own the copyright on your photo, which was not reproduced but used as reference material for the illustration, so there would be no valid claim of infringement. They are two different works in two different media by two different people that use the same subject. Replace your photo with any famous building, or person, or machine - would any kind of claims of infringement be appropriate against this person for creating their own illustration of any of them?

      If the illustration was a photo of your photo torn into pieces and left in a (maybe) artfully designed fashion, would that have the same emotional effect? Would it still be just about attribution if it was barely discernible as your photo? Your photo obviously has human value all on its own *as a reference*, so how can that value diminished by other artists using it as such? I'm just curious and using your example as a general thought exercise, btw, no contention intended. Thanks for joining the conversation. :)

      Note: Yes, I realize I'm conflating claims of infringement/denial of permission/demand for payment with the courtesy of attribution somewhat, but seems too often one cannot happen without the threat of the others, and that is a damn dirty shame.

       

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    Alex Wild, May 6th, 2012 @ 12:13pm

    Thanks for your reply, Leigh.

    But I don't buy your argument. You have reversed the aspects of the image over which I feel some intellectual ownership. Dugald Stermer, the artist, did not copy basic facts of the ant's morphology. I don't make any claims to basic ant appearance. That would be silly.

    Rather, what caught my eye wasn't that Stermer drew an ant. It's that he drew my photograph. The aspects of the image over which I exercised creative control- the lighting and the angle- are identical. By setting up the basics of a standard field-guide image, I saved the artist a couple day's work. Leaving aside the legal aspects of copyright, do you think, from the perspective of mere manners, that might have been worth an acknowledgement?

     

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    emanuel, May 6th, 2012 @ 12:32pm

    Copyright is bullshit, no one just be allowed to own information.

    And anything in the form zeroes and ones is nothing more than information.

     

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    Anonymous Coward, May 6th, 2012 @ 1:20pm

    Sometimes a cigar is just a cigar...so what is it when it's NOT a cigar????????

     

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    Mike from Ottawa, May 6th, 2012 @ 4:51pm

    Get your facts right.

    If the drawing was copied from the photo, then "What was copied from the photograph was simply the knowledge of what the ant looks like" is patently false. What was copied from the photograph was a particular arrangement of the ant's limbs and the angle, framing and lighting of the photograph. For instance, ant antennae are not fixed and immobile, so the positions of the antennae here are not just 'knowledge of what the ant looks like'. There is a world of possible positions of the antennae, legs, head, abdomen and thorax and the drawing has copied the specific arrangement of these mobile elements from the photo.

    If the drawer were merely copying the knowledge, he'd have had an all but unlimited number of possible poses to choose from and yet somehow managed to choose the exact same pose as the photo. Had the guy doing the drawing altered the positions of the legs and antennae he'd have had his own drawing and nobody would be claiming he'd done anything wrong. Nobody can copy facts about historical events, for instance, but if I were to copy the text and maps word for word and line for line from Dave Powell and Dave Friedrich's book 'The Maps of Chickamauga' and claim I was just copying knowledge of the battle of Chickamauga I'd be recognized as talking utter rot. In both the case of the ant photo and the book, you have a particular expression of facts about the world and it is that particular expression that is, and should be, protected.

    One may question how much creativity and skill (elements that go to whether copyright can subsist in a work) went into any particular copyright work, and some have more than others. In nature photography, there is a skill involved in selecting a pose, framing and lighting that succeed in conveying information about the natural world in a clear and useful way. If you don't think so, try taking your own photos of ants!

     

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    Brian O'Meara, May 6th, 2012 @ 6:05pm

    Give it a try...

    I'd suggest that anyone who thinks there is little skill and art in composing a photo like this just give it a try. It's not something as trivial as snapping a pic of a famous politician from a dedicated space for photographers (which is also documenting an organism, of course): you have a living thing just a few millimeters long, actively trying to escape, while you arrange background, lighting, etc. It's far more like portraiture than taking a documentary image of a species.

    For documenting species of ants, there is a particular protocol: collect the ant, kill it, glue its corpse to a triangle of paper, then take a front, side, and top shot. See examples at http://www.antweb.org/ (which are beautiful photos, by the way). Alex Wild's photos ( http://www.alexanderwild.com/ ) are far more creative, and often involve a portable studio. It's like the difference between USDA photos of chicken breeds and Tamara Staples' portraits of chickens.

    Incidentally, the skill involved in just knowing what you're looking at is not trivial. There are over 12,000 species of ants (not just "red" and "black"): to identify which species is being examined, when, given undocumented diversity, "none of the above" (aka a new species) is a common answer, can be done by just a handful of people on the planet. I also have a PhD in myrmecology (Alex and I were labmates), and even I don't have this skill.

     

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    dale, May 6th, 2012 @ 8:56pm

    Intellectual property

    The author does not seem to understand the full concept of intellectual property, plagiarism, or the work involved in photography at more than a snapshot level (though that too would be copyrightable), and that by not getting permission (which I get the idea that Alex Wild would willingly give with acknowledgement), it is theft and is unethical in the greatest sense. Had the artist at least had the skill and forethought to move the legs and antenna somewhat, and maybe tweaked the angle of the body of the ant, it might well be considered art rather than plagiarism.

     

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    AJBarnes, May 7th, 2012 @ 7:50am

    I don't know...

    I'm not an entomologist, but they just don't look the same to me. The head on one is on the right and on the left for the other.

     

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    gary, May 7th, 2012 @ 9:09am

    photo's/

    It always bothered me that my wedding photo of me and my wife taken by a photographer that I paid for were not my copyright.
    Even more that the photographer can no longer be found to get the originals back.. Luckily a good digital scanner solved the last problem.

     

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    Gil, May 7th, 2012 @ 12:19pm

    Re: Re:

    This is a very interesting article and the comments are even more interesting and shed light on an important matter with many unresolved issues.
    I hope you don't mind, Leigh, but I am a paid journalist, and I have just submitted your fascinating article to my newspaper for publication this weekend. Don't worry - it's not like I copied it, I directly translated it word by word into Hebrew. Thank you for the hard work and noting all the important facts. You saved me a lot of effort. I hope you understand. Reading you article, I know you do.

     

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      Leigh Beadon (profile), May 7th, 2012 @ 12:49pm

      Re: Re: Re:

      You seriously translated it into Hebrew? That's badass. I'd love it if you'd tell me the newspaper so I can get a copy. I never thought I'd see my words in a different alphabet. I'm assuming you took my name off, but that's cool - I had no real intentions of entering the Hebrew market anyway. Best of luck to you!

       

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    Ron (profile), Jun 4th, 2012 @ 2:37pm

    What is the Correct "C" Word?

    I think Brian C.'s point is well taken. Alex Wild is a business man, in the business of photography and he works very hard in making certain his images appear high in search engine returns - fur the purpose of selling images.

    Alex Wild used the wrong “C” word (for chump) to describe himself.

    Dugald name is that of a cultural icon and his impact was broad.

    Alex Wild attacked a DEAD MAN. One who can neither defend himself, nor explain. I am no lawyer but I do not think anyone has a claim for defamation once they die. Again, Wild attacked a DEAD MAN.

    Creepy: is the right word for someone who attacks a dead man.

    Scientific American is supposed to be about SCIENCE.

    Wild’s attack was at the blog at Scientific American.
    Wild is a photographer – and he conducts himself not as a SCIENTIST but as a vengeful child in business. He takes advantage of his position at Scientific American to identify a dead man. WHY?

    The vindictive whinings of Alex Wild belong in the world of photography and there is a place that, it’s Photo Shelter.
    Alex Wild’s place is not in science. There are many great photographers that focus (no pun intended) on the sciences but the point is THEY ARE PHOTOGRAPHERS AND SO IS WILD.
    Clueless: is the right word for someone who masquerades as a scientist to expand his business.

    Scientific American claims to be the oldest continuously published magazine in the U.S. which brings its readers unique insights about developments in science and technology for over 160 years. The magazine further claims a combination of unmatched credibility and authority …
    In his blog at Scientific American Alex Wild says he is a photographer.

    “This year (2012) for the first time, I am primarily self-employed as a photographer. My opportunity costs are higher: $45,000. $35k/year is what I made as a research postdoc at the university, and 10k/year is my previous annual photography income. The opportunity cost of transitioning to a full-time photographer is the amount I must make to recover my lost income. So, my total yearly expenses, as a full-time professional photographer, are $6,000 (direct costs) +$45,000 (wage) = $51,000.”

    Chump IS the right word for Scientific American for falling for Wild’s claim to be a scientist.
    Wild blogged: I … denied a scientist permission to use my photos of her ants in a paper headed for PLoS Biology. … The problem is that PLoS content is managed under a Creative Commons (=CC) licensing scheme. I don’t do CC. Overall it’s not a bad licensing scheme, but for one sticking point: CC allows users to re-distribute an image to external parties.

    A scientist, a real scientist whose focus was science would not have denied the use of the image. “I don’t do CC.” NOT EVEN FOR SCIENCE.

    Crazy IS the right word for letting Wild blog at Scientific American.

    There are hundreds of talented scientists engaging in science for the purpose of advancement in science. Scientific American should provide a SCIENTIST, devoted to advancing SCIENCE the opportunity to blog.

    Scientific American should not be in the business of promoting Wild’s photography business and attacking a dead cultural icon.

    When Scientific American lets a photographer, whose business is photography and NOT SCIENCE blog they betray the reader and their own standards. Wild blogs about business advertising but isn’t this exactly what Scientific American is doing in letting Alex Wild, a photographer in the business of photography, blog at their site. Wild makes the case clearly himself at his own blog:

    “I know how frequently infringement happens. I often find my images plastered across the home pages of pest control companies that just went ahead and lifted photos off my web page, or off someone else’s web page. I even get a few particularly brazen companies that ask for free use of images because they will be “educating” people about the services that their company provides (yes, and I also enjoy those nice educational segments about car insurance and light beer I see on the television).”

    Wild looks more like a clown than a chump.

     

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