Legally replicating a photo?

<p>Probably wouldn't take a whole lot of creativity to come up with something more interesting. I would recommend avoiding the question of copyright altogether by shooting a concept of your own.</p>

<p>On a practical level, if you're "looking over someone's shoulder" kind of like you were cheating on a test in school; that's probably a clue that you're copying too much. If you come up with a better way to take the shot, more power to you. I've been to places where there were big signs that practically said, Hey, take a picture here! </p>

<p>There's only some amount of uniqueness. It's like the old saw about monkeys banging on a typewriter. Eventually, if there were enough random typing, one of those monkeys would randomly turn out a copy of "Romeo and Juliet." Did you write<i> your</i> story, or did you rip off Shakespeare?</p>

<p>Look at stock photos. Something like 56,000 pics of "flowers" on one site I visited. There's going to be some creative overlap. Just do your own work, and chances are you'll avoid the whole "did I copy too much" issue. </p>

<p>John H, in regards to my lawyer speak post, that's exactly what I meant. I meant it to be a silly example that my words alone can't be the difference of the work being infringed on or not. To some people they believe that me simply saying the word copy, means exactly that...a copy which is therefore infringing. I simply meant that if we're going to look at every word said then we can also begin examining contexts :)</p>

<p>Just to further add, I have a worthy collection of legal resources and links on the "legal" page of my weblog. If you're not familiar with it, I'd look at the <a href="http://www.templetons.com/brad/copymyths.html">10 myths of copyright</a> first.</p>

<p>Happy reading. BTW - Michael, courts use words. Lots of words, they probably have a bazzillion words to define a what a single word like "copy" really means. Not worth the lawyers fees usually to discover that you fell down on the wrong side of a definition.<br>

Cheers,</p>

<p>There is no copyright violation. Period. if there was most of us would be violating it all the time, there are very few things that have not been photographed.</p>

<p><em>Leigh v. Warner Brothers, Inc. <strong>Summary Judgment against the person claiming copyright. That means he lost. In some places he would have to pay lawyers fees for bringing such a suit. </strong> </em></p>

<p>This throws all those rare sunset; soccer; and cat images into a deep legal issue; Artists may starve! :).</p>

<p>I totally agree with Justin (at the risk of copyright infringement) everybody can put their cameras away now</p>

<p>I don't know the answer to your problem or even what country you live in, and what laws apply, but with all due respect to peoples opinions on this matter, opinions are like a**holes everyone has one but it's no good standing up in court and saying " Its not an infringement of copywrite because someone on Photonet says so " , take some professional advice from a copywrite lawyer, it will cost money, but would be cheaper than paying punative damages , and court costs in the end.</p>

<p>Ben those that assume tend to make ...... what makes you think that some of the people that responded are not lawyers, copyright laws are federal in nature, so anywhere in this country the laws are very similar, another country things may be different, but funny thing about copyright they tend to be good everywhere, getting them enforced in other countries can be a pain in the butt. Based on the images that were shown there is no infringement, can he be sued sure, I could sue you if you live in my home state for calling our opinions anal openings, would I win probably not, would it be worth my time and money, maybe. If you are a very rich person a nuisance lawsuit some times will be worth it. Lawyers, ahhh</p>

<p>At the risk of hearing from Ben personally doesn't copywrite refer to the written word?<br>

Copyright applies to any expressible form of an idea or information that is substantive and discrete<br>

You would think that a professional copywrite lawyer would know the difference<br>

But then I never went to college</p>

<p><a href="http://www.photo.net/photodb/user?user_id=4788871">NIgel Merrick</a>: Nigel: If I think up a new type of way to do a shot , I look at it this , My Idea ,My Design and my Concept ! Do not mess with it :</p>

<p>In weddings its is a Knowen fact that all photographers have copied one and another in that market field , Starting with Jack Curtis and on Up , as far as I am concerned , since the foto implies the same message its Infringment ! Sorry, just because the person is on the other side on the frame its still the Same Idea :</p>

<p><em>I totally agree with Justin (at the risk of copyright infringement) everybody can put their cameras away now</em></p>

<p>Justin's scenerio isn't realistic, even as sarcasm.</p>

<p>Why not? Apparently, any BW images of guys with a gun from the front, lit with one light are off limits from now on.</p>

<p>Now if I would take the original picture and put my name on it, that is copyright.<br>

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work</p>

<p>"I thought of it all FIRST, the sunset, the landscapes, the naked woman, everything"<br>

"Don't make me come down there"<br>

GOD<br>

I MIGHT be paraphrasing a LITTLE</p>

<p>Justin - that is a facile summary. There is also the pose, the mood it creates etc. Far more than a gun and unidrectional light. You could shoot the same pose with someone wearing a clown mask, or with a cheeky grin on their face. The final 'emotional' impact would be quite different.<br>

Your comment is also like saying that the Beatles catalogue cannot be copyrighted because after all music is only a series of black dots written on a piece of paper. Or a pictuer of baked bean cans a la Andy Warhol.</p>

<p>The difficult thing (as Gary's succinct link sumamrised so well) is that it is all subjective and there are no hard and fast rules. One day you may get a judge/jury who thinks the subjective impact is the same and rules in your favour, on another day it may gop against you. it partly dpends on if you want to take that chance.<br>

I don't know if you are old enough to remember this poster from the 70s. Probably one of the most famous posters in the last generation:<br>

<a href="http://www.metro.co.uk/news/article.html?in_article_id=56026&in_page_id=34">http://www.metro.co.uk/news/article.html?in_article_id=56026&in_page_id=34</a><br>

If copyright does not exist for it, why do you think it was never copied? But if you are feeling brave, why not go ahead and make a tidy sum of money to buy new gear....</p>

<p>Sorry, I think the dpreview answers are a bit more sensible.<br>

http://forums.dpreview.com/forums/readflat.asp?forum=1014&thread=30574604</p>

<p>Sorry Lauren, but ideas are not protected. What you said about it being the same idea, is the very thing that's not protected. Ideas can be patented but not copyrighted, the message being the same in the shots has NOTHING to do with it being infringing or not. The only thing it would show is my lack of originality if this was a shot that I wanted to sell on a professional level.</p>

<p>As proof, it happens all the time. Students take a class from a pro photographer, learn that technique, and replicate the technique and some of the instructors shots. There's nothing wrong with that.<br>

<a href="../photodb/user?user_id=2072756">Lauren MacIntosh</a> <a href="../member-status-icons"><img title="Subscriber" src="http://static.photo.net/v3graphics/member-status-icons/sub3.gif" alt="" title="Subscriber" /> </a> , Jan 06, 2009; 09:53 a.m.<br>

<a rel="nofollow" href="../photodb/user?user_id=4788871">NIgel Merrick</a> : Nigel: If I think up a new type of way to do a shot , I look at it this , My Idea ,My Design and my Concept ! Do not mess with it :<br /> In weddings its is a Knowen fact that all photographers have copied one and another in that market field , Starting with Jack Curtis and on Up , as far as I am concerned , since the foto implies the same message its Infringment ! Sorry, just because the person is on the other side on the frame its still the Same Idea :</p>

<p>Just for giggles, what I'd like to hear is how you would feel if the tables were turned. I suspect I know the answer, but lets assume you'd taken and been selling the first photo, then your buddy comes along and sets up the second shot because he wanted to copy yours. How would you feel? would you ask him not to sell his? If your answer is "no problem" - then I suggest you invite him to "copy" one of your favorite shots, so he can start selling that - sorta keeping the table even. so to speak. Then see if it still feels "OK" to you. File under: thought experiment.</p>

<p>Well the real answer to that is that I simply wouldn't do a shot that copies that one and sell it in reality. But what you fail to see as well as some others apparently is that photography and its rules are all copies of someone or something else. The 'rule of thirds' that we like to use so much, the idea of 'bokeh'...all of these things are copies of what's already been done. In fact when it comes to certain formal photography, such as weddings, the rules get even tighter of what works vs what doesn't, yet you don't see anyone carrying on about how this bride with a soft glow and vignette looks just like that other one.<br>

As some here have very clearly shown their narrowness in thinking. "Oh your shot looks similar to the other one and has the same idea, therefore it must be infringing...duh." C'mon, you need to think a bit more out of the box and actually examine certain laws before saying some silly things. Take the post by Lauren that's up a few posts. Very clearly no clue about what the reality of the law is, just a 'wishful thinking' interpretation, yet presented in a definitive manner. Had there been some facts to back up the writing then it wouldn't be the nonsense that it is :(</p>

<p>Michael: Please don't assume what you think I fail to see. I spent nearly a decade working for one of the world's best known photographers. It was my job to understand this kind of stuff, and I have been involved in copyright lawsuits. And I fully understand what we draw from our predecessors. Most people are simply ignorant of understanding copyright laws here in the US, as I am about copyright laws in other countries.</p>

<p>What I'm telling you is that here in the United States, a court uses a series of tests to determine originality, and that is what determines the weight of any infringement, ranging from exact, to substantial, to de minimus. The simple fact is that you crossed a basic line. A court would then decide the merits of any claim against you by doing a point by point test to compare the various expressions within the media, as well as the unique nature of each element or expression. The huge fault against you is your admission of having seen his work first, and admitted replicating the both the elements and expression contained within the media. The factors in your favor are that the originality of each element is minimal, i.e. single male model, single light, single prop, black background.</p>

<p>The facts as I see them here are that you've copied his work, and your friend could make a legitimate claim against you. Either of you could win, or lose. What is for certain is that it's not worth finding out in court who's right. My question is simple, is he enough of a friend that you would honor his request to shelve the photo, or is this photo worth the friendship?</p>

 

<p>In the DP Reviews mentioned above one case of copyright was linked, Where a photographer sued for use of her images, she won. But she had some proof that the image was copied and some photoshop done to slightly alter the image. </p>

<p>Well stated Gary.</p>

<p>Of course no self-respecting attorney would take on a case like this if there isn't a boatload of money lost or gained by their client. Since neither photo is obviously a big seller (just like the vast majority of possible copyright violations), it would be more of a self-initiated cease and desist action.</p>

<p>I'm off to Lawyer.net to ask opinions on the new Sigma 50mm 1.4 ;-)</p>