Legally replicating a photo?

[garrett_cotham]

<p>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?</p>

[charleseagan]

<p>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.</p>

[User_4136860]

<p>To me the bottom line is, on the advice you have been given on an internet forum do you want to take the risk ?</p>

[michael_novo]

<p>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.</p>

[michael_novo]

<p>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. </p>

<p>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.</p>

[jtk]

<p>Two entirely different fat guys, dressed differently, different hair, holding their dildos differently.<br>

If there was an attempt to copy it didn't come close.</p>

[christian_odell1]

<p>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.<br>

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.</p>

[john_h.1]

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

<em></em><br>

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.</p>

[john_h.1]

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

<p><em></em><br>

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.<br>

<em><br /></em></p>

[Mark Keefer]

<p>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.<br>

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.</p>

[john_h.1]

<p><em>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.</em></p>

<p>This may confuse people because the Copyright Act excludes these concepts from being protected and addresses "copies" of creations instead.</p>

<p>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".</p>

<p>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.</p>

[Richard Williams]

<p>Looks to me like both photographers are infringing the copyright of <a href="http://www.shutterstock.com/pic-8680129-a-menacing-man-holds-a-water-pistol.html">this image</a> .</p>

[bobcossar]

<p>I wonder if I might suggest that we are.....</p>

[craig_gillette]

<p>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.</p>

<p>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.</p>

[nathancraver]

<p>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...</p>

[john tonai]

<p>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.</p>

<p>Also, there seems to a general lack of understanding of the copyright law. The law is codified. Go to www.copyright.gov 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.</p>

 

[david_henderson]

<p>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.</p>

<p>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. </p>

[Landrum Kelly]

<p>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?</p>

<p>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?</p>

<p>--Lannie</p>

[manuel barrera houston,]

<p>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 <a href="http://www.photo.net/photodb/photo?topic_id=1481&msg_id=00Ruvb&photo_id=8431055&photo_sel_index=0">http://www.photo.net/photodb/photo?topic_id=1481&msg_id=00Ruvb&photo_id=8431055&photo_sel_index=0</a> I hope tiger woods does not claim process protection for his swings, heck he probably copied someone else,</p>

[kelly_flanigan1]

<p>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.<br /> <br /> 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".<br /> <br /> 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.<br /> <br /> Another theme was basketball shots; another weddings.<br /> <br /> 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.<br /> <br /> 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. ?:)<br>

Maybe a Brady Civil war image of a chap holding a gun; sidelite could be found anfd Pop Photo coiuld be sued too?</p>

[john_h.1]

<p><em>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</em></p>

<p>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.</p>

[andrewg_ny]

<p>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.</p>

[manuel barrera houston,]

<p>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.</p>

[davebell]

<p>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.....</p>

[astral]

<p>Copyright relates to making <em>copies </em> of an original artistic (etc) work, which is <em>not </em> what you are doing (read the relevant legislation in your country).</p>

<p>Closely imitating the original artist's work <em>may be</em> considered to be an infringement of his/her <em>Intellectual Property Rights</em> , which may, or may not be protected in law in your country. Obviously, if IPR is protected, a breach <em>may</em> 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 <em>imitation </em> of an original work needs to <em>closely resemble</em> the original work for a claim for IPR infringement to be sustainable.</p>

<p>Personally, I think your image has only a <em>passing resemblance</em> 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</p>