Legally replicating a photo?

<p>This is one thing that I haven’t thought of much. One photographer I know did this shot…<br /> http://www.lemarchestudios.com/gallery/Fashion/ody_port_2.jpg<br /> When I received my SU-800, I thought it would be neat to replicate this shot that I otherwise wouldn’t be able to do with the stock flash since it always emits some light…<br /> http://images48.fotki.com/v1407/photos/1/101317/2816904/HLGunBW-vi.jpg<br /> <br /> I’m friends with the subject in the original shot, so I sent him my version. After some comments and critique of both images and comparing them he suggested that I never release/sell the shot or make it public since he believed it might be copyright infringement. Now my initial thinking is that there’s no infringement going on here. Perhaps if it was the same model or brand name. So my question is, would this photo somehow be some form of infringement?<br /> <br /> And as a follow up, what about other photo’s? Some photographer snaps an image of let’s say a tree in a park and sells it. Then let’s say I like the shot and am able to almost replicate it on my own seeking out similar lighting conditions, I too snap a pic and want to sell it of the same tree in the park. Would that be violating any copyright laws?</p>

<p>In the photos you post it is clear that you copied the image. But also the <strong>idea</strong> , the <strong>conception</strong> , the <strong>design</strong> , and the <strong>execution</strong> as well. Add that up and I think it is a clear violation of the creators copyrights.</p>

<p>You tree sample is quite different obviously.....regards, Bob</p>

<p>So the two photos have similiar lighting and composure but different subjects and different guns.</p>

<p>I would draw a comparison to wedding photography... similar dress, similar poses, some have very similar lighting and may even be in the same venue but different subjects and so on.</p>

<p>My gut feeling in the wedding example would be that there would be no infringement, thus no infringement in this example. Of course I am not a lawyer and this should not be construed as legal advice.</p>

<p>Yes, this example fits nearly all the textbook legal requirements for copyright infringement, especially since almost all of the copied elements in the way the shot is setup are clearly under your control (posing, lighting, background, etc.) and you established you had access to the original (almost always required in a courtroom).</p>

<p>Weddings contain many similar poses and traditions. The photo posted is rather unique. It's the artist's <strong>conception</strong> mainly that has been stolen. I'm not a lawyer either, but I wouldn't want to defend this case if I were one...Cheers, Bob</p>

<p>I'm not quite sure how my shot is a violation of copyright and only because of the following example...A pro photographer at a wedding is taking portrait shots of all the guests. Now let's say I walk up and take a look at the backdrop and see that it's distributed by Company Y...I find the backdrop online and purchase it. I purchased the backdrop with the intention of creating images that look just like the photographers. Let's say I use my own lighting techniques, camera, and lenses which differ from the wedding photographer.<br>

Then after I get my backdrop, I snap a bunch of couples and put them up for comparison against the original wedding photog. Would those be copyright infringement? By your logic, anyone who uses the same backdrop and posing ideas as anyone else is indeed violating copyright?<br>

You cannot copyright an IDEA. Case in point, look at Guitar Hero and Rock Band. Two games that have exactly the same idea and virtually the same execution, yet there's no copyright infringement there. You also mentioned the Conception...unless I'm mistaken the concept and idea are related. Now the execution is what it comes down to. In my case the execution is actually quite different, from the object being held being a totally different make and model, different lighting, different framing. So the execution is different as well.<br>

Now I really am curious, which is why I asked here but your logic seems to simply be an opinion with no actual backing. So if you have some legal backing (sort of what I posted for) then I'd be happy to take a look, otherwise are you sure you're not just voicing an opinion vs fact? I don't mean it to be insulting, I know tones can be misread via text, but I'm just failing to see where I infringe on copyright. The idea is similar, but the execution is quite different and that's where copyright boils down. In fact that's how companies have gotten away with not violating copyright but just changing one little factor here or there in some product to make it their own and not stealing the work of others.</p>

<p>Well, he did have the intent to replicate the shot and the feeling of the shot. I think that if he were to sell the shot, then there is a potential issue if the original person could show a loss (nut it ma be that a loss does not need to be proved) I think that you could take this shot to the next level, and build upon it in another way, and then you could use it. <br>

I think that the execution does not really come into play, witht he idea and design are too remarkable in thier similarities.</p>

<p>Another site lists three aspects to copywright in thier FAQ: <a href="http://www.ladas.com/NII/CopyrightInfringement.html">http://www.ladas.com/NII/CopyrightInfringement.html</a><br>

<em>"The circumstantial evidence test for copyright infringement by unauthorized coping has three parts:</em><br>

<em>1. Did the accused infringer have 'access' to the work that is said to have been infringed so that copying was possible?</em><br>

<em>2. Is the defendant actually guilty of 'copying' part of the plaintiff's protectable expression from the plaintiff's work?</em><br>

<em>3. Is the accused work 'substantially similar' to the work the plaintiff says was copied."</em></p>

<p>In my opinion (and I am not a lawyer), there is no strict copyright infringement here. For it to be copyright infringement, the image would have to be exactly the same in every detail.. Even that would be hard to achieve if the original photographer took the 2nd photograph!<br>

Yes, the concept is similar, the lighting is similar but that's where it ends, in my opinion.<br>

Consider an example: If you have two landscape photographers standing side by side in the desert and they both shoot a photograph at almost the exact same instant - are they infringing each other's copyright? I don't think so.<br>

An interesting question though and nice work, by the way on the photograph.<br>

<p>Thanks for the responses. But yes that wedding example would be tricky. If Mac (hope you don't mind I use you as an example :) is a wedding photographer shooting at the venue I'm attending and another friend of mine is planning on getting married at that same venue who loved the shots Mac did for the wedding we're attending...then I look at Macs shots and get to the venue and try to replicate them with all my own gear for my friends wedding. It hardly seems like infringement. So if that isn't, then why would this be?</p>

<p> I think the biggest reason why your shot could be construed as a copyright violation is because you admitted in writing that you copied the photo. Had you not made the original post you'd have some plausible deniability. You should feel lucky that your friend was nice enought to warn you about the possibilty of copyright infringement. As far as the tree in the park analogy goes, that's a whole different ballgame being as the tree would most likely be in a public area, allowing anybody to take a photo of it at any time.</p>

<p>Since the intent was to copy the original and you didn't appreciably change the image, I would think that it still falls under the protection of derivative work.</p>

<p>In past copyright infringement cases courts have looked closely at the originality of the image that has been copied. In very common images, such as landscapes of the Grand Canyon or the Statue of Liberty, it is much more difficult to establish the existence of protected elements in the photograph. In commercial and stock photography, derivative works (re-shooting someone else's concept) happen quite frequently, and protected elements are more easily identified.</p>

<p>Garrett, even if I say my intention is to copy the shot, why does that necessarily fall under "copyright infringement"? And if we're going to get into lawyer speak, then I can also argue that by using the word "copy", I meant to copy the idea and not the exact image. It's not illegal to copy an idea. Here's a graduation image I took...<br>

http://images45.fotki.com/v1310/photos/1/101317/7008250/Jessica022a-vi.jpg<br>

Images just like this one have been snapped thousands of times. I'll bet anything that there's a girl out there with a backdrop similar if not identical to the one I used and in the exact same pose. But not one single person here will claim that my image of the girl graduating is in violation of any copyright laws REGARDLESS of the fact that I may have surfed through hundreds of graduation shots and went to replicate the ones that I thought were better. <br>

Now the other part for not infringing on copyright from the few cases that I've read over today seems to be that some differences, even trivial ones, need to exist. And there are more than a few differences between the shots. The ideas are the same but the messages construed are very different. And one big difference to me... <em>Is the defendant actually guilty of 'copying' part of the plaintiff's protectable expression from the plaintiff's work? </em> Well it boils down to if anything in our photo's is protectable. Certainly taking a picture of a guy holding a gun up would be a tough case to prove that it's protectable. I've seen more than one image like the one I aimed to replicate, so showing that this is somehow a unique and protectable expression would be quite a stretch.</p>

<p>That image is hardly copyright infringement.<br>

http://www.copyright.gov/title17/92chap1.html#102<br>

" In no case does copyright protection for an original work of authorship extend to any idea, procedure, etc..." You're not using his image in your image, or duplicating a CD or anything.<br>

The idea - guy with gun. The lighting, from one side. The guy is different, the gun is different, the angle of the gun is different. The composition is different.<br>

Now, you might annoy the first photographer if you tried to sell it, as he might lose sales of people who want a BW picture lit from the side of a guy with a gun. But that's different.<br>

http://findarticles.com/p/articles/mi_m0HMU/is_13_29/ai_95909523</p>

<p>Alt vs. Morello<br>

Howard Alt did a still life composition of a pen (Parker, I think), light grid and yellow spot in a vertical composition.<br>

Joe Morello visited the studio and saw Alt's photo, and redid it using a cross pen in a horizontal composition and smoother, cleaner reflections.<br>

Court determined that "the composition, backgrounds, colors, lighting, objects photographed and cropping are substantially similar..." and was ruled a copyright violation.</p>

<p>Rogers vs Coons.<br>

Art Rogers photographed "String of Puppies". Jeff Coons bought a card with the photo, hired a sculptor to recreate it as a painted wood carving. Court declared that it was unauthorized derivative work.</p>

<p>Lot of court cases that are similar. The courts tend to be tighter in their rulings if the shots were set up. I tell my students that if they want to copy a photograph like you did, it is great for the exercise, but it should remain private and they can use the knowledge gained to create a new photo.</p>

<p>John</p>

<p><br /><em>if we're going to get into lawyer speak, then I can also argue tham I can also argue that by using the word "copy", I meant to copy the idea and not the exact image. It's not illegal to copy an idea.</em><br>

<em></em><br>

It is best to actually read the Copyright Act. If you had, you would know that copyright protections concern "original works of authorship", in this case, "pictorial, graphic, and sculptural works" which is beyond something that is merely in "idea" form.</p>

<p>If your interpretation were valid, it would wipe out the entire copyright act itself as any work of authorship (whether a created picture, recorded song ect.) would have zero protection ever because you came along and claimed such existing things were only an idea. No one would ever be able to infringe on anything actually created ever. You could record any copyrighted song note for note, recreate or simply copy any picture and publish all the words of a book in a different book and the copyright owner would be helpless to do anything because all those created works were just an idea.</p>

<p>That's not lawyer speak, that's nonsense.</p>

<p>Personally, I would mix it up. His pose and the way he is holding the gun look very weak, not to mention the whole copyright thing... Nice 1911 btw, is that a Kimber?</p>

<p>"Lot of court cases that are similar."</p>

<p>Thank you John for bringing some reality to this notion that infringements are confined to exact duplication. </p>

<p>Justin, juries in copyright infringement cases assess whether there is a "substantial similarity" to the original. It is almost never a pure case of appropriation of another's image (as in a lot of post modern art). See for example the case of <em>Sahuc v. Tucker</em>, discussed in Nancy C. Wolff's <em>The Professional Photographer's Legal Handbook</em> (2007), pp. 71-72, in which the Appeals Court dismissed the claim of infringement partly because the scene depicted a commonly photographed subject (Decatur Street in New Orleans), and as such the claim to originality was not as strong, so that the test of "substantial similarity" could not be made convincingly to rest on specific choices made by the photographer.<br>

<br /> In one instance an Appeals Court decided that two photographs had enough similarity in "total concept and feel" for the case to be brought before a jury (<em>Leigh v. Warner Brothers, Inc.</em>) under laws currently in effect in New York and Georgia. In another case, <em>Fournier v. Erickson</em>, a photographer working for a Microsoft Windows 2000 advertisement was replaced by a second photographer when negotiations broke down. A court ruled that the concept of a businessman walking down the street in casual clothing was not protected, but that there were enough protected elements in "posing, lighting, angle, selection of film and camera" contributing to total concept and feel to go to trial (the case was settled for a confidential sum after this court decision). (<em>from</em> Wolff, p. 75).<br>

<br /> Many copyright cases do not go past summary judgement to a jury, but in his example Michael provided the two criteria most important in establishing infringement in court: access to the original (this is the only legal way to prove copying) and substantial similarity (specifically in those aspects that are original and under the direct control of the photographer).</p>

<p>Justin, you should re-read the third and fourth paragraphs of the article you linked. Then you should study cases where your "different" type arguments were made. Sometimes it works (especially in staged shots as John T. said), sometimes it doesn't. We should probably avoid making conclusions here.</p>

<p>Note to entire world. BW image of guy with gun and one light is now taken. Please find something else to shoot. :)</p>

<p>"Note to entire world. BW image of guy with gun and one light is now taken. Please find something else to shoot. :)"<br>

Brilliant! Exacly what I was thinking.</p>

 

<p>I find it hard to believe that your friend was the first one to come up with this lame shot...</p>

<p>Wow, there's some pretty good information here. After looking at some of the articles I would have to change my position and say there really could be some infringement. Either way though I agree with Justin that the original photographer would probably be unhappy.</p>

<p>if you set out to replicate a photo or artwork, and used the first as a basis for creating a second, then, yep it's a copyright infringement. To what degree is determined by a court litmus test. How original was the first work, and how closely are those elements copied. I'd not want to try and defend your position in court. Based on the fact that you already admitted in a public forum what your intent was, I might consider your friends request as legit.<br>

BTW - don't take legal advice from photographers, dentists, plumbers, or your mailman.</p>