When Is An Image 'Manipulated Enough' To Become An Original Creation?

from the tricky dept

Images manipulated using programs like Photoshop or the GIMP are a familiar sight online. Indeed, the ease with which images can be modified has led to an amazing flowering of this new branch of the visual arts. But like much in the digital world, this brings with it problems. Here, for example, is the interesting case of a competition on the MINI Space site, which is run by BMW as an oblique form of marketing for its Mini car. An article on the PetaPixel photography blog explains what happened when the site invited submissions on the theme of "check-mate" (pointed out to us by @copyrightgirl). Here's "PapiloChessBoard", the photomanipulated image that gained the winner a MacBook Pro laptop:

Pretty impressive. But it later transpired that it was based on the following image by the photographer Kevin Collins:

As PetaPixel explains:

Collins was never contacted for permission, and he never allowed his photo to be manipulated and published without attribution -- much less as an entry in a contest. (He did Creative Commons license the photo, but required that any use carry attribution).
Initially, the MINI Space site seemed untroubled by this fact:
We hear that the contest was contacted by the second place winner regarding the violation. Their response was that the photo was not a violation of the rules or copyright due to the fact that it was "manipulated enough" to qualify as original artwork.
But it seems now to have changed its mind, as an update on the competition page explains:
After the "Check-Mate" winners were announced, it came to our attention that the first place entry was in violation of our competition rules. MINI Space values its community above all else, and as such, the original winning entry "PapiloChessBoard" has been disqualified retroactively.
Since the original photo's attribution was not included, there's no doubt that the modified image breaches the CC licensing terms, even though they were hardly onerous. But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right. Of course, that's not a new question, but the ease with which photomanipulation can now be carried out to create complex re-workings of existing images means that it's one that is likely to be posed increasingly frequently.

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    identicon
    P, Apr 15th, 2013 @ 8:37pm

    ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

    When the degree of manipulation produces a result which is not recognizable by its first creator as being of their creation. Same thing with music / audio, IMHO. Discuss.

     

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      Anonymous Coward, Apr 15th, 2013 @ 8:52pm

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      Several problems with that idea.

      First is that it turns "the first creator" into the judge, which not only makes the judicial system irrelevant, but also places the adjudication in the hands of someone who, not only has a vested interest in the case, but is also the aggrieved party. That is a huge no-no.

      Second, the first creator may not even be the one who holds the copyright on the original creation, if said copyright has been transferred to another party. In the case of music, we have seen numerous examples where the musicians themselves are perfectly fine with their work being manipulated, but their labels, who hold the copyright, are not.

      Third, every "first creator" will have a different standard for when they consider a work not manipulated enough. Some will consider any use of their work to be infringing, regardless of how close to the original the new work sounds or looks. In effect, this results in a widely inconsistent standard that is impossible to determine until after the new work has been produced. It's the same problem as fair use: it's only a defense, and doesn't prevent someone from being lawsuit-happy.

      Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.

      Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.

      In short, your definition is too vague, undermines the judicial system, and would cause unacceptable chilling effects on artistic expression.

       

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        PaulT (profile), Apr 16th, 2013 @ 2:49am

        Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

        There's a sixth point that comes to mind - what if the first creator is not available to make a judgement (e.g. dead or eyesight has become too poor to make a judgement)? Would that standard make any work based on work by dead or disabled artists automatically legal or automatically illegal?

         

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        Anonymous Coward, Apr 16th, 2013 @ 3:29am

        Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

        First is that it turns "the first creator" into the judge

        It did not in this case !!!!

        Second, the first creator may not even be the one who holds the copyright on the original creation

        That's right, it is true and a FACT that your ownership of the copyright is the point, not who created it. It's just the way it is, people are allowed to sell what they own, including copyright. Makes no difference in this case, and a creator who has sold the copyright to his creation has not more rights to use it as you or me.

        Third, every "first creator" will have a different standard for when they consider a work not manipulated enough

        They will, but it is not them who decides that, that judgment is always up to someone else, just like if someone stole your car, you can decide who did it, or that it was done, but it's not up to you to determine guild or innocence, or to impose punishment.

        It would not even be the creator anyway, it would be the copyright holder, and as we've previously determined they do not have to be the same people.

        Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.

        that's your point 3, and it's still wrong, you may have your car stolen, that may have been identified by a third party (or the police). You may have noting to do with identifying the breach of law, or that a breach has even occurred (you might not even know your car is stolen).

        None of this makes the act (car theft) any less illegal.

        Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.

        same as point 3 and point 4, nothings stopping ANYONE making that claim, then it is up to the court, to determine guilt or not.

        In short, you do not get the point of all your points..

        Sixtly, it's OBVIOUS this is a knockoff of the original, even someone with the brains of a Masnick could work that out.

        This guy, (who entered this contest is simply a CHEAT, and FRAUD, and tried to get away with STEALING a prize.

        He should not of only been disqualified from the contest, but he should have been referred to the law, for investigation and possible fraud charges.

         

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          PaulT (profile), Apr 16th, 2013 @ 3:38am

          Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

          You had some points, even if they came close to be overshadowed by your usual obnoxious attitude. Then you had to switch to outright misdirection and personal attacks at the end, lowering your rank back down to complete tosser.

          Keep at it, you're almost making some points, but acting like an obnoxious ass still isn't doing you any favours if you want people to take you seriously.

          "if someone stole your car, you can decide who did it"

          Really? Most people would allow evidence and investigation to reveal the true culprit, rather than who you decide to blame. Facts are facts, not something to be decided by your on a whim. I suppose that's consistent with your tendency to attack innocent 3rd parties for the infringement actions of others, though.

           

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            Anonymous Coward, Apr 16th, 2013 @ 4:59am

            Re: Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

            You get the idea that darryl had his car stolen at some point in his life? Or perhaps a solar panel, one of whom he frequently talked to?

             

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          Anonymous Coward, Apr 16th, 2013 @ 4:24am

          Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

          worst. car analogy. ever.

          you're talking about a situation where we have already determined that it was illegal. therefore, you entire analogy is completely useless as the whole purpose of the discussion is to discuss at what point something crosses the 'line of legality.' you're comparing the situation to one that is already illegal. that leaves absolutely no discussion and makes every point you tried to discuss useless because it restructured the argument to say something it did not. You did one or more of the following: didn't understand the viewpoints you were arguing against, don't understand the actual concepts involved, don't understand your own arguments, or you're a manipulative sophist with some ulterior motive.

           

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            Niall (profile), Apr 16th, 2013 @ 4:51am

            Re: Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

            At best you could argue the 'legality' of a friend you've lent your car to, lending it to another friend when you hadn't been asked or specifically forbidden it.

             

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          Anonymous Coward, Apr 21st, 2013 @ 4:58pm

          Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

          "same as point 3 and point 4, nothings stopping ANYONE making that claim, then it is up to the court, to determine guilt or not."

          Which misses the point entirely. To determine guilt, the court needs standards to go by. A standard that you set forth is

          "When the degree of manipulation produces a result which is not recognizable by its first creator as being of their creation. " which is ridiculous.

          Are you really that stupid? Well, I guess all IP extremists are. Our current IP laws did not result from those with merit but it resulted from idiots with little merit and no regard for morality.

           

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        Leigh Beadon (profile), Apr 17th, 2013 @ 8:13am

        Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

        It is worth noting that the current situation is often more onerous than what you propose. In music sampling, for example, there is no requirement that the creator even notice the sample. Notorious sample copyright trolls like Bridgeport (which owns -- though that's questioned -- the George Clinton catalogue) and Tuf America (the ones who sued the Beastie Boys last year) operate by buying up the rights to old jazz and funk records, then having their computers crunch through hours of audio from sample-based records to look for tiny sonic matches. Indeed, in a landmark 90s case involving Bridgeport, the court specifically rejected the argument that an "unrecognizable" sample is not infringing, and the standard ever since then has been "get a license or don't sample"

         

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          Leigh Beadon (profile), Apr 17th, 2013 @ 8:15am

          Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

          (slight mis-reply -- meant in response to first commenter)

           

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      Anonymous Coward, Apr 15th, 2013 @ 11:38pm

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      This depends too heavily on the accidents of the psychology of the "first creator" -- in particular his vested interests.

      It's preferable to try to squeeze some of the subjectivity out by referring to a "reasonable man" or "neutral third party" as the notional bearer of judgement. There is still tons of subjectivity left !!

       

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      PaulT (profile), Apr 16th, 2013 @ 2:43am

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      "When the degree of manipulation produces a result which is not recognizable by its first creator as being of their creation."

      Not a good standard, far too subjective and it depends on the work being created before a judgement can be made about whether it meets the standard. Any standard should be objectively testable, and be understood by a potential new artist before attempting a new work, not finding out after the work has been done that it's unreleasable.

      As examples, in music, some artists don't mind if half the song is used as long as attribution is given, others have thrown fits over samples lasting less than a second. Others don't seem to notice for a couple of decades then launch lawsuits when they suddenly notice similarities. Others still have no problem - until the new artist finds financial success, then there's suddenly issues.

       

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      Anonymous Coward, Apr 16th, 2013 @ 3:05am

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      What about when a work starts with a new photograph of something that just happens to be very similar to someone else’s photograph?

       

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      Ninja (profile), Apr 16th, 2013 @ 3:24am

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      if the original work is unique the author will recognize it regardless how much you altered. And if you manipulate it to the point you cannot link it to the original then is it really a derivative of that original or an entirely new original in itself?

       

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        Niall (profile), Apr 16th, 2013 @ 4:54am

        Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

        The standard here should work with all forms of media - pictures, moving pictures with sound, and audio. How many songs have been released where the person who claims they were copied didn't notice for years?

        In the end, it comes down to "how many bits are copyable" as well as how much of the 'general' expression, both of which are horribly subjective.

         

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      twitchy, Apr 16th, 2013 @ 3:13pm

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      DRM it

       

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      Anonymous Coward, Apr 21st, 2013 @ 4:51pm

      Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

      "When the degree of manipulation produces a result which is not recognizable by its first creator as being of their creation. "

      Are you really that dumb that you would post such an inconceivably stupid comment?

       

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    Morgan, Apr 15th, 2013 @ 8:46pm

    https://www.youtube.com/watch?v=rJ8TzCv1dfs&feature=player_detailpage#t=4263s

    Here's a nice video where they talk a lot about how to (as a photographer) protect one's self from a lot of the bad clients in the world. Though these protections also include protection against third parties.

    Basically, there's no amount of changing that makes it original work. If someone took a picture, it's theirs and any derivatives are under their control as well. If you want to use the picture, either get the rights to do so or grab a camera and take your own picture.

    However, at another point in the video they talk about a case where the image is not copyrightable because it was a Thomas the Train toy on a white sweep and there was nothing to copyright (the toy was separately registered for copyright by a different entity). Seems to me to be a quite similar scenario (though this image appears to have some lens flare). Anyway, don't let me confuse things, probably should just watch the video or read their book or follow their blog.

    I know this blog is somewhat anti-over copyright, but I like to think these guys aren't saying (if you watch the whole video) "sue everyone," but rather, these are the tools that are available to you.

    Book: http://www.amazon.com/Photographers-Survival-Manual-Artists-Photography/dp/1600594204/

    Blog: http://thecopyrightzone.com/

     

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      Anonymous Coward, Apr 16th, 2013 @ 4:29am

      Re:

      one doens't own every derivative work of their original. you do not necessarily need to get the rights of the original photographer either, its just safer because of the 'sue everyone', culture. Plus, its still subjective if you have put enough of your own creativity in it. Moreover, you only own copyright on the artistic elements of a photograph, not the photograph itself, which is another issue with what you're saying. I can't watch the video right now as it's blocked where I am, though i can at least tell that what you took from it is incorrect. So either they were misleading, wrong, or you misunderstood. Either way, it means the video most likely failed.

       

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      Sneeje (profile), Apr 16th, 2013 @ 4:42am

      Re:

      Just to be clear, we agree that the statement "Basically, there's no amount of changing that makes it original work." is bogus right? You're just explaining what those in the video think, yes?

       

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      John Fenderson (profile), Apr 16th, 2013 @ 9:44am

      Re:

      Basically, there's no amount of changing that makes it original work


      This is not true. Perhaps what you mean is that it's safest to act as if it were true, but that's a legal CYA stance, not a fact of law.

       

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      Leigh Beadon (profile), Apr 17th, 2013 @ 8:17am

      Re:

      As you point out, there is an inherent hypocrisy in the attitude of such photographers.

      If no amount of changing a photo is sufficient to make it an original work, then how is any mount of photographic creativity sufficient to make a visual copy of something that exists in the world an original work?

       

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    Anonymous Coward, Apr 15th, 2013 @ 8:56pm

    Like a moth to the flame...

    Im no expert in image manipulation, but he managed to make the moth's naturally rounded spots square. That seems like a pretty impressive feat. I would certainly consider it "original" given the amount of work probably required to make it look like that.

    BTW, its a Giant Leopard Moth, and it has a nearly 3 inch wingspan. There are a lot of pictures of this species around the web, are they sure its the same individual in both pictures?

    Anyway its nice to take a break from today's otherwise dreadful news.

     

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      Anonymous Coward, Apr 16th, 2013 @ 3:32am

      Re: Like a moth to the flame...

      the original moth's picture has some square spots too !!!

       

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      Chronno S. Trigger (profile), Apr 16th, 2013 @ 2:05pm

      Re: Like a moth to the flame...

      "There are a lot of pictures of this species around the web, are they sure its the same individual in both pictures?"

      If it's not the same picture, it's the same moth. But that begs the question, what if it is a different picture, but is the same moth? Does the copyright claim still exist?

      If I take a picture of a building that looks almost identical to another picture of the same building, is it infringement?

       

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      Anonymous Coward, Apr 16th, 2013 @ 4:13pm

      YOU CANNOT COPYRIGHT NATURE!!

      I think you're right about this, the original is a creature of nature; and as such cannot be copyrighted.

      Okay, so the setting: leopard moth on a white background. Sorry, no: if you can copyright "white backdrops", we're all screwed.

      Shot angle?? Again, impossible to copyright: that would knock out so many camera angles used in so many ways, that it would bring everything grinding to a halt, and likely lead to an angry mod beheading the photographer and his legal team.

      The picture itself: okay, possible. But, unless the second user took the actual photograph, on it's original media, and manipulated it in such a way where it was OBVIOUS it was the original work, then you may have a case. But it wasn't the original media: it was a digital copy, which was apparently (KEY WORD HERE--he might've used a completely different image) reversed, then significantly modified to the point where the salient identifying features of the moth were TOTALLY obliterated, and then a completely new set of salient features digitally "painted" on, making the secondary (if indeed it is secondary) image a totally new image, without any real relation to the original.

      Somebody really screwed the pooch here, and it was two: the Mini site, and the mental photographer. Too bad the original artist got screwed.

       

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        Tex Arcana (profile), Apr 16th, 2013 @ 4:18pm

        Re: YOU CANNOT COPYRIGHT NATURE!!

        Oops, forgot to log in.

         

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        Leigh Beadon (profile), Apr 17th, 2013 @ 8:19am

        Re: YOU CANNOT COPYRIGHT NATURE!!

        this came up once before in a very similar situation. suffice to say, photographers get very defensive when you suggest that nature can't be copyrighted:

        http://www.techdirt.com/articles/20120430/13265818718/sometimes-photos-are-just-fact s-copying-is-to-be-expected.shtml

         

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          Tex Arcana (profile), Apr 17th, 2013 @ 10:16am

          Re: Re: YOU CANNOT COPYRIGHT NATURE!!

          The salient part of your linked article is this:

          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.


          If photographers wish to get defensive and bitchy about "copyright" and "inspiration", then they might as well throw away their cameras and give it up altogether.

           

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        IAmNotYourLawyer (profile), Apr 17th, 2013 @ 11:19am

        Re: YOU CANNOT COPYRIGHT NATURE!!

        But, unless the second user took the actual photograph, on it's original media, and manipulated it in such a way where it was OBVIOUS it was the original work, then you may have a case. But it wasn't the original media: it was a digital copy, which was apparently (KEY WORD HERE--he might've used a completely different image) reversed, then significantly modified to the point where the salient identifying features of the moth were TOTALLY obliterated, and then a completely new set of salient features digitally "painted" on, making the secondary (if indeed it is secondary) image a totally new image, without any real relation to the original.

        First, you can certainly obtain a copyright on a photograph of nature. Like all of Ansel Adams's works. See Burrow-Giles Lithographic Co v. Sarony. While most of the elements in isolation are not protected expression, the composition as a whole certainly is. If the contestant went out, got his own moth, and shot his own photo, he would have been fine. This wasn't hard to avoid. But by using an existing work, he instead created a derivative work, entangling the copyright controls of the original work, rather than a completely new work.

        Second, the medium of storage doesn't make a difference. The original photographer's rights in a digital copy of his work are essentially the same as the original "film" version. It's either a derivative work or the same work fixed in a different medium, and, either way, he has the full set of copyright controls on that work.

        Third, I think it's incorrect to claim there's no "real relation to the original". You pretty much laid out how you get from the original image to the contest image- reverse across the vertical axis, and stretch out the spots to make it more grid-like.

         

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          Tex Arcana (profile), Apr 17th, 2013 @ 5:22pm

          Re: Re: YOU CANNOT COPYRIGHT NATURE!!

          Actually, the original spots were completely obliterated, then replaced with a completely different set of spots.

          And, either way, you just put an argument that does nothing to support the doctrine of fair use.

          So what if the person used the original as a source? Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.

          If anything, the photographer should be happy his image was used. Should the second user have attributed the source? Perhaps. And that's an easy fix. But to pitch a fit to the point where a truly creative work was thrown out in a fit of pique?

          Sorry, he's being a bitch, and so was BMW/MINI. It was absolute genius that he came up with that, and the judges obviously agreed. But because he used an image that someone else decided wasn't freely usable (oh, gee, I guess we need to pay a fee every time we look at it, too), a specially after putting it out on CC??

          Sorry, your argument just doesn't hold water, unless you're doing your damnedest to make sure everyone pays.

          I guess that means you ARE a lawyer, given your stance.

           

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            IAmNotYourLawyer (profile), Apr 17th, 2013 @ 8:10pm

            Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

            Well, you never mentioned fair use- only the eligibility for copyright of the image. And arguing that the contest image was fair use is very different than arguing that the original image wasn't protected by copyright. All your statements about backdrops, shot angles, and general lack of originality only address the copyright, not whether or not the transformation was fair use.

            Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.
            No, it makes it a derivative work with new original elements. If the contestant wanted to make a completely new work, he (she?) should have started with their own photo. Instead, there was transformation of an existing work. Reflecting around an axis, changing the shading, squaring the dots, etc. all amount to editing a pre-existing work and creating a derivative work.

            "[Did] not exist in the original image" is not the correct standard. Suppose I use photoshop to make the negative of the original image- so every pixel is different and does not exist in the original image. Is that a new work? Yes. Is that a derivative work? Yes.

            While there can be a lot of new original creative expression in the derivative work (for which the second artist can receive copyright protection), that doesn't obviate the infringement on the original work or the ability of that copyright holder to act on it.

            Whether or not the photographer is just "being a bitch", that's his choice. There are only a few compulsory licenses in the copyright code, and this wasn't one of them.

            Regarding the CC license, if you violate the terms of the license, then you're not protected by it. For example, that's the point behind the GPL- if you want to use my copyrighted computer code, then you can, subject to the GPL conditions. If you violate those conditions, then you are outside the scope of the license and are committing copyright infringement. In this case, it was a photograph and not computer code, but the same concept applies.

            Sorry, your argument just doesn't hold water, unless you're doing your damnedest to make sure everyone pays.

            Not liking the result doesn't make the argument invalid. If you think this is a crappy result, then get congress to change the copyright law.

             

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              Leigh Beadon (profile), Apr 18th, 2013 @ 10:50am

              Re: Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

              The fact is that both of you are right. The key is that there is a big difference between "derivative" and "transformative" -- you've used the terms interchangeably here, but they are in fact very distinct.

              A work that builds upon another work is "derivative" (must license the original copyright, or else be infringing) until it reaches a certain level of change such that a court sees it as "transformative", at which point it is no longer considered to be infringing on the original.

              The question of where that line is drawn is not simple or fully resolved. Different circuits have different standards, different judges will see things in different ways, and different artistic media have wildly different precedents. Copyright law lays out various tests for determining if a work is transformative, but they are not clear-cut and a lot of discretion resides with the judge -- so it's not just as simple as "get congress to change the law" (though that is certainly still a good goal).

               

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                IAmNotYourLawyer (profile), Apr 18th, 2013 @ 1:51pm

                Re: Re: Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

                I think that analysis is off in a few aspects.

                Yes, "derivative" and "transformative" are distinct terms, but neither are they mutually exclusive. In fact, "transformative" works are a subset of derivative works.

                A “derivative work” is a work based upon one or more preexisting works, such as a ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 101, emph. added


                Definitionally, the contest image was a derivative work of the original image.

                Second, there isn't a transition from derivative to transformative. Even if the contest image were to be considered fair use, it is still a derivative work of the original image, but a non-infringing derivative work. Moreover, the transformative aspect of a derivative work is only one part of the fair use analysis. So you can transform a work to an extremely high degree and still fail on a fair use claim- that is, you would have a highly transformative but infringing work.

                Lastly, while I agree that copyright law has a lot of gray areas, the claims that (a) the original photo couldn't be copyrighted (the title of this thread is "YOU CANNOT COPYRIGHT NATURE!!") and that (b) "creating new ones that do not exist in the original image, or in nature, makes the new image original work" are just plainly incorrect according to current law.

                Certainly while a new, non-derivative work would be non-infringing, you can also have non-infringing derivative works. And trying to shoehorn the contest image into the former category just won't work definitionally- they started with the original image and photomanipulated it- that's a derivative work under copyright law. Whether or not it is fair use is a completely separate issue.

                 

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    ChurchHatesTucker (profile), Apr 15th, 2013 @ 9:22pm

    Feh

    Photography is a mechanical reproduction of nature. If I can't copyright what I shoot with a stat camera, why should you be able to copyright what you shoot with a Leica?

    Oh? It's because of your choices of framing and whatnot? Then you're cool with someone recropping your photos? Or photoshopping the hell out of them?

    Shepard Fairey is Girl Talk. Discuss.

     

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    identicon
    Anonymous Coward, Apr 15th, 2013 @ 9:46pm

    Hmmmm...

    He's just flipped the image and modified a few of the spots on the head... no great feat.

    Honestly... I think if I was the original photographer I would have been a bit pissed off.

     

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      out_of_tha_blue (profile), Apr 16th, 2013 @ 1:01am

      Re: Hmmmm...

      Indeed, It's a ten minuet job at best...

       

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        Anonymous Coward, Apr 16th, 2013 @ 4:33am

        Re: Re: Hmmmm...

        no one ever said art had to be difficult. Difficulty should not be the determination of whether its original or not. It's ridiculous to even assume so. I could easily tell you that the act of taking the original photo took a second at best. If he did touchups afterward, so be it, but nonetheless, if this one where the guy changed physical attributes of the insect is easy, then so were the touchups then. Therefore, I conclude that the picture was *really* easy to take. And considering its just a picture of nature and he didn't do *hard* work, it should therefore not be copyrighted.

        See what happens when I take your point of view to its logical conclusion? It fails.

         

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          art guerrilla (profile), Apr 16th, 2013 @ 8:39am

          Re: Re: Re: Hmmmm...

          exactly...
          picasso (and others, especially magritte) made what is sometimes called 'found art'...

          exempli gratia: picasso had a piece which was an old-school drop handlebar and bike saddle which were attached such that it was evocative of a bull's head...
          the inspiration to see that is one thing (where his genius lay); but i bet it took him all of five minutes to assemble it...
          yet it is still an inspired piece of 'art', all the same...

          art guerrilla
          aka ann archy
          eof

           

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    special-interesting (profile), Apr 15th, 2013 @ 10:32pm

    To boldly say what needs to be said; if even ONE PIXEL is changed that is enough to for an original works rights claim (copymite, right)

    Artwork digital recovery; through scanning (for whatever reason like preservation/backing up or whatever) several artifacts are unavoidable incurred. An artist may take it upon themselves to “clean up” the scan with an image editor like GIMP. (open sourced quality editor) Its conceivable that a lazy artist would only see one pixel that needs to be erased/changed/modified.

    Artistic talent; Comedy/Humor/art-vision. Installing/removal parts of and manipulation of an image for whatever reasons is normal. Its at least conceivable that while working on an tiny blog avatar that a single pixel will change significantly the images character.

    Evil Intent; (attempt at dark humor); Got something to hide? Edit the data. Remove or change a photo (like Iran's mythical jet fighters) for propaganda. Just adding or removing one incriminating or misleading pixel gives an whole new visual perspective ripe for exploitation.

    Whether or not an original artist gives permission to publish any of their works is irrelevant to the issue of a new copyright of which the new copyright has complete control of the distribution rights pertaining to the style and character of the revision (only) on the original work.

    Interestingly enough the changes (easily electronically sorted out from the original copyrighted work) may be published without any violation and later recombined/overlapped with the original artwork later on. (am on to something here its got to be a patentable idea.)

    Since on the digital level the change of even one tiny single supposedly insignificant pixel can be exactly identifies and labeled as unique it constitutes original work thus copyright-able however silly or pointless it seems. At the digital level its nonsense to use comparisons to analog legal considerations. (lots to expand/expound upon here)

    All claims of the original artist that any of their works is a modification or their work is irrelevant. Only charges of publication in violation of Free Use Rights are valid.

     

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 12:26am

      Re:

      Interestingly enough the changes (easily electronically sorted out
      from the original copyrighted work) may be published without any
      violation and later recombined/overlapped with the original artwork
      later on. (am on to something here its got to be a patentable idea.)


      Great post, but I think I can improve it as follows. I will store only the changes.

      base> cp old new
      base> emacs new
      base> diff new old
      4c4
      < later on. (am on to something here its got to be a patentable
      ---
      > later on (am on to something here its got to be a patentable
      base>

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 12:11am

    It seems to me that the issue here is not copyright for the purpose of law, but originality and proper credit for the purpose of honor (winning a contest).

    A contest organizer who makes the legal aspect of copyright the centerpiece of their rule-making is a kind of goody-two shoes, in my view -- not really an artist kind of person. You should be allowed to submit anything you please, even modified by "one pixel" as suggested in an earlier post.

    On the other hand, it's quite reasonable to require your submission to come with transparency over sources -- kind of like in the academic world, where copying is essential, but credit equally so.

    Knowing your sources will then have a profound effect on the contest judge. Depending on their expectations and the type of contest, the image above -- the beetle with squares -- may look like a mere download, or a brilliant piece of transformation.

    Besides the question of novelty, there's the aspect of crediting the first level creator. In a formal contest, it's kind of poor manners to leave this out, could even be put in the rules.

    In short, we support a world of rampant and massive copying, but it's what you add that gets noticed.

     

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      nospacesorspecialcharacters (profile), Apr 16th, 2013 @ 2:16am

      Re:

      :
      "On the other hand, it's quite reasonable to require your submission to come with transparency over sources -- kind of like in the academic world, where copying is essential, but credit equally so."

      :

      This, essentially. The new image is quite creative in itself and it's clear that the contest winner had some inspiration that Kevin Collins lacked - or he could have modified his pic, submitted it and won instead.

      That's not to take away from Collins' amazing photograph. But both 'artists' have contributed something - Collins took the photo and the contest winner took it a step further - this is essentially what Disney does with it's movies and no-one bats an eyelid because "it's Disney"/"they're old works"/"they're public domain" (take you pick).

      The flaw here is not in the reproduction of CC work - it's the non-attribution - but did the entry form even allow for providing an attributable source?

      The world has yet to adjust to an age in which copying is as easy as "cp" and some artists want to give away for free but still be attributed.

      Also - Good on Kevin Collins for making his work CC!

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 12:54am

    This raises the fundamental question, why do we still have copyrights?

     

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    •  
      identicon
      Anonymous Coward, Apr 16th, 2013 @ 3:37am

      Re:

      to stop freaking cheats like this moron, who was trying to steal a prize (a laptop) from the work and creativity of others.

       

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      •  
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        Niall (profile), Apr 16th, 2013 @ 5:08am

        Re: Re:

        Being given something wrongly or fraudulently isn't quite the same as 'stealing' something. And this is hardly a clear-cut case, hence the discussion in the article.

         

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        identicon
        Anonymous Coward, Apr 16th, 2013 @ 5:37am

        Re: Re:

        Once again you're making the mistake of mixing up "copyright" and "plagiarism" - but why would an idiot from Australia bother doing any fact-checking?

         

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    Zakida Paul (profile), Apr 16th, 2013 @ 1:14am

    "When Is An Image 'Manipulated Enough' To Become An Original Creation?"

    "When the innocent person you are accusing looks guilty.

     

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 2:38am

    the standard is unrecognisable as the original work; basically, if someone who has seen the original work sees your work and can tell it's a copy, no copyright. If they cannot, you have your own copyright.

     

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 4:39am

      Re:

      poor concept at best, awful at worst. people have fantastic abilities to do fuzzy logic in their heads. A computer may not be able to tell two images are related because every single pixel could be wrong, every color could be off, and any simple image transformations may not be able to recreate the new one, but a human could look at it and be like, yea, I can see the original. Or even worse, they could not notice it, but then once someone points it out, it's all they can recognize. Plus, if you're completely rendering the original's presense as zero, what's the point anyway? "You can have art as long as all your inspirations and ideas are covered up enough that we can't figure out how you possibly thought of this new idea."

       

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      Leigh Beadon (profile), Apr 17th, 2013 @ 8:22am

      Re:

      bad idea, and also not in fact the legal standard, at all

       

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  •  
    identicon
    Anonymous Coward, Apr 16th, 2013 @ 5:01am

    "Since the original photo's attribution was not included, there's no doubt that the modified image breaches the CC licensing terms, even though they were hardly onerous."

    this is the issue.

    "But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right."

    this is an academic discussion. no amount of manipulation would have superceded the CC liscense.

     

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 5:12am

      Re:

      If the manipulation is enough to become an original work covered under it's own copyright then yes it would as cc is a copyright license

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 7:14am

    Here is where I have a problem with automatic copyrights being granted for things. In my opinion, the new photo expresses creativity and should be copyrightable, whereas there is nothing creative about the first. Sure it's a nice picture, but copyright should require some kind of creativity to be involved.
    There's nothing creative about just pointing a camera at something and clicking the trigger like most of the world does. Monkeys can do it as been discussed here before. If the photographer in some way creates the illusion I'm good with it, but if someone just snaps a quick pic of the sunrise, a speed limit sign, or a bug... to me that's the same as reporting facts, which are not copyrightable.
    Someone, I'm sure will now bring up the "expression" argument, but even so, the intent and the expressions have changed in this case to the point where I don't see it applicable. Besides, even flipped the angle is different and doesn't look anything more than similar to me.

     

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      jupiterkansas (profile), Apr 16th, 2013 @ 7:57am

      Re:

      The photographer choosing to document makes photography a creative act. There's no need for any additional creativity beyond that.

      That doesn't mean other people can't document the same thing and be equally creative, even to the point of looking identical.

       

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    mattshow (profile), Apr 16th, 2013 @ 8:12am

    But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right.

    I'm going to be nitpicky here because... well, that's just what I do. That question isn't particularly interesting at all. Most likely it wouldn't really take all that manipulation for the "remixer" (whoever is directing the software) of an image to have copyright in the new image. The standard would likely be different in different jurisdictions.

    But that doesn't matter. It's possible to have copyright in a work and still have that work infringe on the copyright in another work. The real question (which I think is what most people have been discussing anyway) is: when has the image been manipulated enough that it no longer infringes on the copyright of the original image?

     

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    John Fenderson (profile), Apr 16th, 2013 @ 9:53am

    The wrong question

    I think the "manipulated enough" standard is faulty. In my opinion, to remain true to the purpose and intent of copyright, the standard should be more like that of trademark: is the derivative one that can be easily confused with the original? Would people be likely to forgo the original because of the derivative? It shouldn't be a copyright violation unless people will buy the "copy" instead of the original.

    With some works, a trivial change can alter the work completely. In these cases, the trivial change results in a completely new work and is not "in competition" with the original. The original artist is absolutely not harmed, and may even be helped by getting new audiences to investigate the original work.

     

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      Leigh Beadon (profile), Apr 17th, 2013 @ 8:25am

      Re: The wrong question

      In a copyright context, a lot of those questions are wrapped into the "impact on the market" pillar of a fair use defence -- and, indeed, they should really have much more prominence

       

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    special-interesting (profile), Apr 16th, 2013 @ 10:01am

    wrote this in another post but its kind of definitive;

    "We consider under Fair Use Rights the ability to quote from one source for use in a work of our own. Actually using the words, whether in or out of context, is normal and done all the time. So how is using a clip of some song, speaker, video or whatever new communication method any different? Why does Fair Use Rights not cover that? When we create an essay, video or song using a clip/quote from some other source why is that a problem as long as the source is (listed) in the bibliography."

    So why cant we just consider sampling like any other Fair Use Rights usage? Since any subjective analysis is complex and often arbitrarily applied.

     

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    dennis deems (profile), Apr 16th, 2013 @ 11:42am

    When Is An Image 'Manipulated Enough' To Become An Original Creation?
    Trick question. There's no such thing as an original creation.

     

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 2:34pm

    I know this seems to be a complicated question, but it's long been answered. A collage is not a new work that can be attributed with a new copyright (unless it's "news" or "parody").

     

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      Leigh Beadon (profile), Apr 17th, 2013 @ 8:29am

      Re:

      not true -- collage is still fairly prominent in visual art, and the main things that keep it safe are the de minimis doctrine and the broader fair use argument (not just news/parody)

      From a 2006 collage ruling:

      Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”

      The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.”


      http://whatisfairuse.blogspot.ca/2008/02/blanch-v-koons-fair-use-of-copyrighted.html

       

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    identicon
    Abhishek jain, Jan 17th, 2014 @ 4:08am

    Clear Background

    Nice one and Nice post !! thanks for sharing this valuable information with us. :)

    Clear Background.

     

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  •  
    identicon
    Mr Martin Anderson, Feb 2nd, 2014 @ 7:50am

    Meh thats life most businesses and well established corporations steal things then twist them into something new get with the real world :)

    Photoshop CC Crack

     

    reply to this | link to this | view in chronology ]


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