Re: imitating photographs

[Was: Napster and the XXX.LANL.GOV defense]

On 07/28/2000, Jim Brennan <brennandot[_at_]prodigy.net> wrote:
>
> On Thu, Jul 27, 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > And in some instances, the copyright owner can be successful
> > against the author for infringing his own work. In Gross v.
> > Seligman, 212 F. 930 (2nd Cir. 1914), a photographer sold the
> > copyright in a photograph to someone else. Two years later, he
> > took a similar photograph of the same model. The court held that
> > the second photograph infringed the first.
>
> That result is puzzling. The second photo was not a copy of the
> first. What is a derivative work? If the decision was a copyright
> decision as opposed to a contract decision the rule would apply to
> others as well as the original photographer. Would that court's
> holding mean that all photographers who subsequently took a similar
> photo would be infringing the original copyright? Copyright in a
> photo of the Washington Monument would preclude others from making
> similar photos of the monument?

Copyright protects against the copying of original expression, not ideas; and it protects only the original contribution of the author. So anyone can take a picture of the Washington Monument; the original contribution added by the author is only the precise selection of angle, lens, timing, and any laboratory work. All of that would be very difficult to imitate closely; the similarity would most likely arise from the similarity in the subject, rather than the photography.

But with a studio photograph, things are a bit different. The photographer poses the model, controls the backdrop, setting, lighting, etc. A studio photograph can be imitated much more closely, and the similarity in subject matter counts, because it is [presumably] original to the author. So, yes, anyone else who took a similar photograph [substantial similiarity of protected expression, in the eyes of the ordinary observer] would infringe.

A derivative work is simply a work based upon a previous work. It doesn't have to be a manipulation of the negative of the original; it can be an imitation. The scope of permissible imitation depends on the level of originality present. So, if you went to Hernandez, New Mexico, at the same time of year as Ansel Adams, and took a photograph of the moonrise in the same place that he took his in 1946 (I think), and made a print that very closely resembled his, that would be an infringement.

[I'm just explaining traditional copyright doctrine, not necessarily advocating the result. Don't shoot the messenger.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Jul 31 2000 - 18:03:11 GMT