Legally replicating a photo?

<p><em>If it is not the process then what is it. Give me an example of what part is not process that they want protected. </em></p>

<p>The answer to the 'substantial similar' part of the ingringement test you ask about lies in the sentence you wrote before this one. It is the image (or the result) that matters here, not how the the reslts were acheived. Its not <strong>how</strong> it was made but <strong>what</strong> was made.</p>

<p>Its all spelled out in the Act. It says, among other things, that "In no case does copyright protection... ...extend to any... ...process... ." Its essentially telling us to forget about the process and look instead to the result. </p>

<p>Let's cut to the chase. Almost everyone copies everyone else. How many photo's are copied looks of Glamour Shots posing for example. After so many years of art and photography not much is original or truly unique. There is a picture I saw that is in that catagory and I'm going to reproduce the image for my own portfolio and use. I'm not going to sell the image, and although I could possibly get more business as a result of this well executed image, I still need the technical ability to pull the image off, which is what most people want in their photographer. Copies are unfortunately a fact of life. If the image is truly unique then it should be considered flattering that someone may want to copy it. I have seen many image derivations of the Mona Lisa, but somehow I think the copies are worth significantly less.</p>

<p>yes it is spelled out in the act that is why, I fail to understand what the deal is. some images are created and marked at a trademark, for a company, that is different. Let me see you take a photograph of Obama while standing on a podium with a light from the right side. He comes to my hometown and I take a similar photo, you image is protected? And only your image of Obama with a light from the right can be used, sold, etc.? You take a photo of an apple with three lights at different angle and I take a photo of an apple with lights at similar angles, your image is protected from my doing the same thing? I think some of you are confusing trademark, patent, with copyright. I stated the image is protected, the actual image, if i use the same process which you agree and get a similar result then that is copyright according to you. That is not logical why protect the process if you will prohibit the end result. Again I think some of you are confusing trademark with copyright. As much as some of us would like to think that we are unique we are not neither is our creative ability. Find me one case where someone won the right to have a photograph only like they had. Did people sue probably, but suing and winning are not the same thing. Want to be safe no such animal exist if by accident you were to create something similar you could still be sued whether you had seen it or not. I took this several years ago and have seen numerous people do the same afterwards, do I care no, in fact I am flattered that they liked it enough to go the same thing. Here is the link to the image <a href="http://www.pbase.com/memejr1949/image/76776129">http://www.pbase.com/memejr1949/image/76776129</a></p>

<p>This is an interesting post! I'm not a lawyer and the following is an opinion, not legal advice...<br /> <br /> One thing I haven't seen mentioned is that copyright expires. (Used to be 120 years?) Flowers, graduates and brides have been the subject of art for how long now? <Read: it's been done. To death.> A version with expired copyright (more than likely) exists somewhere. So using the graduation picture example allows me to suggest it's now free of copyright problems because other, substantially similar graduation photos have already been taken that have now expired. (Ok, I haven't actually looked).<br /> <br /> Mmmmm... perhaps your strategy is to look for an ancient image that is similar to both of yours. Now the argument of similarity is your friend... it's been done and the copyright has expired. <br /> <br /> FWIW, I think those two (OP) photos are substantially the same. I don't see how changing the guy changed the mood, feeling or story it tells. And I agree that the law talks to the entire wedding shot/similarity argument on other grounds. <br /> <br /> Again, my two-bit opinion only...</p>

<p>I am not so sure that your picture is a violation of the original copyright. I am not a copyright lawyer, but your work may have enough elements of originality to make the good faith argument that it was not a dirivitive work, but rather an original creation. The fact is that copyrights protect copyrighted works, not ideas. The copyright is in the final piece, not in the pose or the lighting. </p>

<p>Michael, most of the people who hae replied to you have no idea what copyright is. They obviously have little or no understanding of copyright, or the differences between: copyright, patent and trademark law. I would suggest that you and they all begin be reading the following:</p>

<p>http://www.copyright.gov/</p>

<p>and the related U.S. federal statutes that govern copyright law, as when as the international Berne convention that defines and governs copyright law concepts internationallly.</p>

<p>It is not possible to copyright a conception, an idea, or a design. It is only possible to patent an idea, a design, a process and so forth, and only when there isn't "prior art" that may have been patented previously. It is only possible to copyright exact expression. For example the text of a book can be published, but not the concepts within the book. For example, we can be write books about how to use a newly released camera. Only the exact text of the books about the camera can be registered for copyright. We would not have infringed upon each others' copyright because both of us would have written books about how to use the camera. In your example photograph, two people have taken photographs of a guy (a different guy in each photograph even) holding a gun while lit from the side. While the photos are similar in concept, a concept is NOT what someone copyrights. Only embodied expression can be registered for copyright. Even then separate copyrights exist for different embodiments of an expression. For example the sheet music score for a song can be registered for copyright protection. In addition, multiple recordings of the song, made under license from the copyright holder of the written song, made each be registered for copyright. Copyright law provides specifically for registering sound, video, and other recordings for copyright protection. That is a specific copyright over the recording, while a seperate copyright registration would exist for the music's score/sheet music. Both the two photographs above may each be registered for copyright and protected under copyright law, without infringing upon each other, because they do not and cannot, as they exist, fringe upon each other's copyright because they, simply put, are different photographs, and quite recognizably aren't the exact same photograph.</p>

<p>Some of the concept inherent in copyright is embodied in the word. Copyright is law that enables the creator of some work of expression to control copying of and dissemination of that expressive work. Copyright only controls the little - copying - of the exact thing, not the concepts embodied in it. Copyright governs and restricts ones legal ability to make copies of the bits, the data, that is a digital photograph, or make prints from a negative, or to sell copies of prints, the negative, the digital bits or whatever.</p>

<p>Even though patent law exists, it is not possible to patent such a thing as the concept of a photograph of a guy holding a guy while lit from the side. The concept simply isn't unique, original, or the first time someone has done that. What would be patentable would be a vaccine to protect against the AIDS virus, but only for a statutorily defined period of time, which keeps changing and currently various from about seventeen (17) to something like twenty-one (21) years. After that anyone would be able to manufacturer an exact duplicate version of that AIDS virus without paying the original patent holder licensing fees. We know such things as generic drugs. The same is true of some computer concepts. For example, right now the H.264 mpeg4 video encoding algorithm is under patent, but once the patent expires, the MPAA won't be able to collect fees for using it. For example, a set of data encryption algorithms that were owned by RSA recently went off patent, enabling anyone to create public key cryptographic software using those algorithms without paying royalties to the RSA consortium. Another interesting aspect of even patents is that they only apply to the specific "method" of whatever it does, not the general concept. That is what makes is possible to for many patented SSRI depression drugs o exact, since the concept of an SSRI drug cannot be patented, only anspecific formulation of SSRI drug may be patented.</p>

<p>Given all the foregoing, there isn't any way that either of the photographs that are under discussion within this thread infringes upon the copyright of the other photograph. In any event, just o argue about it, the parties would need to register their photographs with the U.S. copyright office at the library of congress, in Wash. D.C., and then the plainttiff would need to file a federal district court lawsuit in the defendant's jurisdiction and venue, which might be far away, and endure the significant expensive of the federal court admitted attorneys needed to litigate the case. In the end, the plaintiff would learn just what I have described, the neither photograph infringes on the copyright of the other.</p>

<p>By the way, Michael posted this same article on dpreview.com, where it created a firestorm thread, with all manner of crackpots, who know absolutely nothing about copyright law, sounding off with their totally uninformed misconceptions.</p>

<p> </p>