UK Court Says You Can Copyright The Basic Idea Of A Photograph | Hacker News Reader

UK Court Says You Can Copyright The Basic Idea Of A Photograph

techdirt.com

28 pointsllambda14 comments

In the old days, before the internet changed everything, there was an unstated assumption that people could pretty much do whatever they liked with copyrighted work unless they were making money off of it. I remember those days. People would trade mix tapes and no one really cared even though it was probably technically illegal.

Eventually, large rights holders started pushing toward the idea that copying or unauthorized performance was actually a significant revenue loss, and that pushed the RIAA and MPAA into our homes (so to speak).

I think that what we need is a reversion to a strong distinction between copying/remixing for money or just for personal use or sharing. Nothing highlights that necessity quite like this case. On it's surface, it is about a calendar that was for sale, but the import is terrifying: someone can assert ownership of particular poses of people in family photographs, market their own photos and sue anyone who uses that pose in a private photo and shares it online.

This monstrosity is precisely because there is no distinction between for-money and not for-money uses. It's eroding completely and it's a serious problem.

For money / no money isn't such a great distinction either. After all, the Minute Maid corporation and a kid's 25 cent lemonade stand are both "for money".

However, there's a bright and shining line between corporate entities, and actual humans. Assuming that even low-level commerce is not something that we want policed, it seems like setting up a new line at the point where a business is worth incorporating.

Put simply, you have to be incorporated before copyright penalties apply. Critically, you don't have to be incorporated to go after an infringing corporation.

This doesn't really solve the business model problems of legacy rights holders, but it does provide a clear basis for moving forward, not just with new models, but with law that doesn't harm people's daily lives.

Sounds like a good idea, but I remember someone telling me that there is some legal principle around transferring ownership of property and the distinction between private companies and public corporations; that it's bad when the same rights don't attach. This was around the time that Joel Bakan's book came out.

Definitely an idea worth looking into, though.

The same story from a different source was posted two days ago: http://news.ycombinator.com/item?id=3508615. As was pointed out in the comments then, this ruling is nowhere near as broad or unreasonable as any of the knee-jerk articles make it sound. Essentially, the judge found it to be infringing because the evidence showed that the people who commissioned the photo were trying to make a counterfeit version of the original.

And that's why the ruling is contentious. With out an attempt to deceive it's not a counterfeit. It's an inspired piece of creativity. The judge is effectively defining the boundaries of inspiration.

http://dictionary.reference.com/browse/counterfeit

But that's the point: It does seem like there is an intent to deceive. From my understanding of the relevant facts, the copycat photo is meant to be displayed on merchandise right next to those that use the official one, and it seems unlikely a lot of people will be able to tell that it isn't just a cropping.

I think you're confusing the photo with the products. Perhaps the products are deceptive, but this case is about a unique photographic execution being a violation of copyright. Not a label infringing trademark.

I think the judge was confusing them too. He let the 'up-to-no-damn-goodness' (as my old law professor would say) of the defendant prejudice his judgment on the copyright issue.

Paragraph 71 of the ruling explicitly states that the claim of unfair trade competition was not considered: "Whether or not consumers confuse the products of the parties (or their licensees) is not the issue."

Essentially, the judge found it to be infringing because the evidence showed that the people who commissioned the photo were trying to make a counterfeit version of the original.

I.e., the defendant's crime was embodied entirely in the defendant's state of mind rather than in the defendant's actions or in the work the defendant produced.

The ruling[1] is actually quite explicit that the pictures in question are obviously dissimilar (10), and the ruling is also explicit that brand confusion was not the issue (71).

I think the ruling is absolutely as broad and as unreasonable as the most hysterical headlines make out. For once.

[1] http://www.bailii.org/ew/cases/EWPCC/2012/1.html

While it might be broad, I'm not sure if it is unreasonable. In paragraph 37 the judge quotes case law and emphasizes: "defendants deny infringement but they do not advance a case of independent design".

In paragraph 67 he explains this further: the defendant "could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament".

I think that if this work was done as a "clean room" effort where the requirements were specified and the designer wasn't shown the template to replicate, the output would have likely differed in many other ways and the court case would have swung the other way or avoided completely.

> "defendants deny infringement but they do not advance a case of independent design".

Which is funny, because after the people pulled up a bunch of other photos that were pretty similar, the plaintiff said they'd never seen them before and the judge simply took them at their word. While he didn't consider item 71 for some reason, it's probably the main thing that undercut any way for them to claim theirs was original.

Apparently, if nobody knew where they got the idea from, it would've been okay?

In paragraph 67...

I think you mean 68.

There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's an assertion he's not really in any position to make, frankly.

If the defendant had done as he suggests, and the picture turned out to be similar enough to the claimant's, why wouldn't the claimant still sue? Why wouldn't the judge find that alternate photo to be a deliberate imitation, and thus an infringement in that case, exactly as he did in this one?

...the output would have likely differed in many other ways...

This judgment explicitly states that copyright infringement can occur even if the works in question don't look at all alike (30) and that the differences between the pictures aren't important but the similarities are (56).

I half-suspect the judge is an amateur photographer and he's tying himself in all these logical knots because the defendants in this case are a bunch of jerks.

But I also think (in my non-legal-expert way) that this is a really, really stupid decision with terrible implications, and I hope it's overturned or reversed in some way.

There is no such thing as independent design. We've been copying and remixing since before we were painting on cave walls.

Reply on news.ycombinator.com