Legally replicating a photo?

Discussion in 'Business of Photography' started by michael_novo, Jan 5, 2009.

  1. This is one thing that I haven’t thought of much. One photographer I know did this shot…
    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…

    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?

    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?
  2. In the photos you post it is clear that you copied the image. But also the idea , the conception , the design , and the execution as well. Add that up and I think it is a clear violation of the creators copyrights.
    You tree sample is quite different obviously.....regards, Bob
  3. So the two photos have similiar lighting and composure but different subjects and different guns.
    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.
    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.
  4. 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).
  5. Weddings contain many similar poses and traditions. The photo posted is rather unique. It's the artist's conception 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
  6. 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.
    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?
    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.
    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.
  7. 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.
    I think that the execution does not really come into play, witht he idea and design are too remarkable in thier similarities.
    Another site lists three aspects to copywright in thier FAQ:
    "The circumstantial evidence test for copyright infringement by unauthorized coping has three parts:
    1. Did the accused infringer have 'access' to the work that is said to have been infringed so that copying was possible?
    2. Is the defendant actually guilty of 'copying' part of the plaintiff's protectable expression from the plaintiff's work?
    3. Is the accused work 'substantially similar' to the work the plaintiff says was copied."
  8. <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>
  9. 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?
  10. 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.
  11. 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.
  12. 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.
  13. 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...
    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.
    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... Is the defendant actually guilty of 'copying' part of the plaintiff's protectable expression from the plaintiff's work? 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.
  14. That image is hardly copyright infringement.
    " 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.
    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.
    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.
  15. Alt vs. Morello
    Howard Alt did a still life composition of a pen (Parker, I think), light grid and yellow spot in a vertical composition.
    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.
    Court determined that "the composition, backgrounds, colors, lighting, objects photographed and cropping are substantially similar..." and was ruled a copyright violation.
    Rogers vs Coons.
    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.
    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.
  16. 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.

    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.
    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.
    That's not lawyer speak, that's nonsense.
  17. 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?
  18. "Lot of court cases that are similar."
    Thank you John for bringing some reality to this notion that infringements are confined to exact duplication.
  19. 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 Sahuc v. Tucker, discussed in Nancy C. Wolff's The Professional Photographer's Legal Handbook (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.

    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 (Leigh v. Warner Brothers, Inc.) under laws currently in effect in New York and Georgia. In another case, Fournier v. Erickson, 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). (from Wolff, p. 75).

    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).
  20. 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.
  21. Note to entire world. BW image of guy with gun and one light is now taken. Please find something else to shoot. :)
  22. "Note to entire world. BW image of guy with gun and one light is now taken. Please find something else to shoot. :)"
    Brilliant! Exacly what I was thinking.
  23. I find it hard to believe that your friend was the first one to come up with this lame shot...
  24. 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.
  25. 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.
    BTW - don't take legal advice from photographers, dentists, plumbers, or your mailman.
  26. 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.
  27. 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!
    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 your story, or did you rip off Shakespeare?
    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.
  28. 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 :)
  29. 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 10 myths of copyright first.
    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.
  30. 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.
  31. Leigh v. Warner Brothers, Inc. 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.
  32. This throws all those rare sunset; soccer; and cat images into a deep legal issue; Artists may starve! :).
  33. I totally agree with Justin (at the risk of copyright infringement) everybody can put their cameras away now
  34. 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.
  35. 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
  36. At the risk of hearing from Ben personally doesn't copywrite refer to the written word?
    Copyright applies to any expressible form of an idea or information that is substantive and discrete
    You would think that a professional copywrite lawyer would know the difference
    But then I never went to college
  37. NIgel Merrick: 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 :
    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 :
  38. I totally agree with Justin (at the risk of copyright infringement) everybody can put their cameras away now
    Justin's scenerio isn't realistic, even as sarcasm.
  39. Why not? Apparently, any BW images of guys with a gun from the front, lit with one light are off limits from now on.
  40. Now if I would take the original picture and put my name on it, that is copyright.
    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
  41. "I thought of it all FIRST, the sunset, the landscapes, the naked woman, everything"
    "Don't make me come down there"
    I MIGHT be paraphrasing a LITTLE
  42. 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.
    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.
    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.
    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:
    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....
  43. Sorry, I think the dpreview answers are a bit more sensible.
  44. 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.
    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.
    Lauren MacIntosh [​IMG] , Jan 06, 2009; 09:53 a.m.
    NIgel Merrick : 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 :
    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 :
  45. 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.
  46. 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.
    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 :(
  47. 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.
    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.
    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?
  48. 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.
  49. Well stated Gary.
    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.
  50. I'm off to to ask opinions on the new Sigma 50mm 1.4 ;-)
  51. Michael- you seem to be certain that you're shot is not a copyright violation so my question to you is, if you are so sure, why did you bother to ask the question in the first place?
  52. I think the concept may be too general. Is he the only one who has taken a shot like that? I think if you can find a similar photo taken before it may help your argument.
  53. To me the bottom line is, on the advice you have been given on an internet forum do you want to take the risk ?
  54. Garrett, I actually wasn't too sure when I initially asked the question, but had nothing better to do than spend a whole lot of time researching it :) Based on the facts of what would define infringement, the shot would not fall into that group. That's the only reason I'm more certain now.
  55. Ben, no I would never rely on advice from a forum when it comes to something legal. If someone has a link, personal experience with such an issue, or is in a legal field that can answer my question then it's very good input to have. It's nice to have read some of the factual links that some folks provided and thanks for those and all the responses in general. Now in my exact scenario here, I created the shot and have shown it to the original photog for some feedback from him on what he liked vs didn't. I merely posted it as a 'what if' scenario that was brought up by someone else and at the time I didn't have much a response, so mostly posted it to get other ideas.
    If I actually created a shot that I truly wanted to use for my own commercial purposes but came across a shot it resembled a lot more than the one I posted, then I would never post anything about it online and only consult with an attorney. At that point it would boil down to me taking no chances.
  56. jtk


    Two entirely different fat guys, dressed differently, different hair, holding their dildos differently.
    If there was an attempt to copy it didn't come close.
  57. I'm no expert. In my ignorance, I would think looking at these photos, that yes, there is a striking simliarity. However, there is also a striking similiarity with about 100,000 other shots just like it I've seen on pbase, flickr, here, etc. A one light from the side with an object in the hand isn't original, everyone has done something similar.
    To me, in my inexpert opinion it would be like the guy who first took a baby shot of a newborn wrapped in a quilt and funny hat taking someone to court because they took one like it. There is only so much creativity to go around and sometimes people do hit on the same basic idea. Big deal. Only someone anal-retentive and bored would try to take it to court.
  58. Why not? Apparently, any BW images of guys with a gun from the front, lit with one light are off limits from now on.

    If you read the link you provided, you will learn that one requirement for an infringement to occur is that the subsequent image be substantially similar. Your example above does not meet that requirement because the same elements can be used to create images that are not substantially similar. There are all sorts of very different compositions that can be created using your criteria.
  59. Sorry, I think the dpreview answers are a bit more sensible.

    Many are more sensible but, none of them support your argument. Indeed, they negate it. Some of the posts debate whether or not the images are substantially similar, a composition issue, whereas your criteria is techniques or things in the image regardless of the composition. Review Mike's post as he illustrates this distinction rather well.
  60. While the idea may be the same type of thing, this is clearly not a copyright infringement. Different photo, different person, different image. This is a very common pose and lighting to give a tough guy look.
    Common sense needs to come into play here. If we start calling this copyright infringement we might as well put our cameras away because someplace out there exists something like everything that has been done or can be done.
  61. 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.
    This may confuse people because the Copyright Act excludes these concepts from being protected and addresses "copies" of creations instead.
    The Copyright Act which does not treat these things as "copies" but as a "procedure, process, system, method of operation, concept, principle" which is not protected. The act protects works that are created, not the techniques (such as those above) utilized in making the creation. The Act, in the definition section, describes copies as being "material objects... ". Rules of thirds, bokeh ect are not material objects or "works of authorship".
    We can use pronouns, adverbs, sarcasm, slang and all manner of literary devices to create a protected written work. We can use rules of thirds, bokeh lighting techniques ect to create a protect a photgraphic creation. Some are having difficulty discerning the process of making creation from evaluating the result of a creation. It does not matter how an image is created under the Act, it matters if creation is "copied" in a sufficent way.
  62. Looks to me like both photographers are infringing the copyright of this image .
  63. I wonder if I might suggest that we are.....
  64. Keep in mind that if you do get to court on a copyright infringement, you have the choice of going wth a judge who is probably well aware of the legal niceties or a jury who is perhaps going to decide on it from their own set of limitations of understanding and whose eyes glazed over long before the attorneys and judge got through explaining things to them.
    In a cynical or practical sort of way, unless it becomes an emotional fight for someone or a lot of money might be involved, no one is going to go to court over this. I don't think one could win a copyright infringement action on this. Besides nitpicky differences, if the OP asserts it was done for educational purposes, to learn the methods, techniques, etc., and it wasn't sold, nor did it it impact any commercial value of the original, it's just not going to get to court.
  65. I am no lawyer by any means, but I think that legally a 33% difference constitutes a different creation. You used a different person, opposite positioning (mirrored left to right) and different gun which technically constitutes a 75% difference with the only similarity is black and white. Even the pose is different. I would see it as being more inspiration than replication and would not worry about it. 20 people could take pictures of the same tree and none of them would look the same with lighting, depth of field, perspective etc. all being different. Unless you tried to copy down to the last detail a creative work of another, and then pass it off as your own, then you might have something to worry about. Just my 2 cents worth, but I might get refunded...
  66. What I don't understand is that all the working photographers I know are upset over the proposed changes in copyright law which weakens our rights, yet there is a group of people here who seem to think that we need less copyright protection. Or, maybe more accurately, they think that the law should function in the way that they want it to function. You might want the two original posting photos to be different because you see what you think are obvious changes (different gun, different model, flipped right to left, etc.) However, the differences are not really that much and the situation that the OP admitted that he tried to replicate it (or at least that he saw the image prior to creating his photo) would give rise to the possibility that this was an unauthorized derivative work. It would then be up to the court to make the determination as to who is right.
    Also, there seems to a general lack of understanding of the copyright law. The law is codified. Go to for the law and for information. Download the circulars pertaining to visual art. Make an appointment with a copyright attorney for clarification. But remember, and the attorney will tell you this, decisions based on the law are interpretations. Rarely are they clean cut.
  67. david_henderson


    If there is any defendable intellectual property in the former of these two shots-which I'd doubt- how do we know that the first of these shots isn't entirely derivative of yet another which we haven't seen? Maybe there's hundreds of prior photographs of a guy holding a gun like this and side-lit.
    Its realistic I think that those photographers who want to have ownership and protection over any little idea they may have should consider the restriction that such policies would place on their photography.
  68. How about shooting the moon at first quarter with a dark background? How about shooting bikini babes on bikes? How about shooting a plate full of fruit, or a reclining nude?
    Check out the gunzines. I suspect that this has been done to death. What is so original about some guy holding a gun up against a black background?
  69. Tonai, what creative process have these professionals created that they want to protect, if someone can take the same concept that I have and create a better looking image then mine by taking a concept that may be mine, more power to them that means I have to improve my photography. As long as they don't copy my image and modify it with ps or other means, I just don't care. Here is a link to an image that I recently created, go to it buddy I hope tiger woods does not claim process protection for his swings, heck he probably copied someone else,
  70. I shot a shot of myself back with my gun as the Exakta VX; it was side lit the same way; that was in the late 1950's or early 1960's time frame; before I got by used Nikon F in 1962.

    I got the idea; borrowed; stole it ; learned it from a 1930s or 1940's Popular Photography Column by the Famous Photographer Andreas Bernhard Lyonel Feininger; in Pop Photo's "Feininger's Workshop".

    This image of mine was printed on Kodak thick fiber based "Postcard paper"; and used to mail off as one of my early goofy advertising in Indiana; the postcard rate was 3 cents.

    Another theme was basketball shots; another weddings.

    In another 1970's shot I did I held up an old 1947 Kodak Vigilant 620 as "my gun"; and used side lighting; and left the roll films edge marking of "Kodak Safety" with the arrow shown.

    Thus may Pop Photo or Feininger's estate might have an interest in this infringement I did 40 years ago; or the recent copy cats. ?:)
    Maybe a Brady Civil war image of a chap holding a gun; sidelite could be found anfd Pop Photo coiuld be sued too?
  71. Tonai, what creative process have these professionals created that they want to protect, if someone can take the same concept that I have and create a better looking image then mine by taking a concept that may be mine, more power to them
    Once again, the Copyright Act does not protect the "creative process" or "concepts". The Tiger Woods example, while obviously sarcasm, concerns "process" again. John may endorse a stricter approach as to what amounts to an infringment of a creation than others but, your post and question for John doesn't really address his comments.
  72. Perhaps when you describe the situation to others you might say "inspired by" rather than "copied". Sounds more like flattery and less like ripping-off.
  73. John, I did address his concern, his concern has to do with process, The image is protected, the process is not. If it is not the process then what is it. Give me an example of what part is not process that they want protected. How they placed the lights? The time of day? The age of the model? Recent lawsuit involving the apple image, the difference is that this is not a photograph but rather a logo that was created. Well the lawsuit goes back to 1991 for trademark infringement by Apple. Seems they copied the beetle logo.
  74. Each to his/her own, but I don't like the shot. I suppose in certain areas people need to compensate for something thats maybe not quite up to standard.....
  75. Copyright relates to making copies of an original artistic (etc) work, which is not what you are doing (read the relevant legislation in your country).
    Closely imitating the original artist's work may be considered to be an infringement of his/her Intellectual Property Rights , which may, or may not be protected in law in your country. Obviously, if IPR is protected, a breach may result in legal action: this happens from time-to-time in the UK and Europe, but is really very uncommon. It is generally accepted in Europe that an imitation of an original work needs to closely resemble the original work for a claim for IPR infringement to be sustainable.
    Personally, I think your image has only a passing resemblance to the original and that you should not worry. If you are still concerned just say "Inspired by .... " and give the author of the original a little credit, or take proper legal advice. AC
  76. If it is not the process then what is it. Give me an example of what part is not process that they want protected.
    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 how it was made but what was made.
    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.
  77. 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.
  78. 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
  79. This is an interesting post! I'm not a lawyer and the following is an opinion, not legal advice...

    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).

    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.

    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.

    Again, my two-bit opinion only...
  80. 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.
  81. 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:
    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.
    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.
    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.
    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.
    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.
    By the way, Michael posted this same article on, 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.

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