Re: imitating photographs

On Wed, Aug 02, 2000, Linda Gruber <linda[_at_]novelart.com>
>
> On Mon, 31 Jul 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > 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.]
>
> Do you mean that one would go with the purpose of replicating the
> exact scene and take a print of Ansel Adam's photo along to try to
> stage it exactly? If so, I think you are right. My understanding
> is that one must not copy, but if one does 'by chance' do an image
> that is virtually the same even though it appears to be a derivative,
> it would still not be a derivative unless the plaintiff could prove
> that the second creator had been exposed to the plaintiff's original.
> Then, even perhaps in some subliminal way, he might be considered to
> have copied.
>
> I read where Andrew Lloyd Webber was not held to be infringing a
> song from Phantom of the Opera because there was no way he could
> have heard the plaintiff's song. Webber demonstrated that his song
> was made by weaving the music from various pieces he had done before.
>
> As an artist, I wonder just where the line is between inspiration
> and a derivative work. I have young artists ask me if they can use
> my work as inspiration. I give them my own definition for what feels
> fair, but I don't know if there is any legal definition that I can
> rely upon. For instance, I may see an image which inspires me to
> do a completely new image. None of it is a copy. (I might see an
> emerald and say, "Oh, I want to do a bottle that captures just that
> light and those colors.") One or another element which strikes me
> about the other work inspires me to do something similar to that
> element in my work, but the works are not the same. It might be
> the colors; a particular pose; a mood; the lighting; the balance
> of the composition; the idea but not the same kind of characters
> or setting; a similar kind of character but a completely different
> idea, mood, and setting. On the WWW, I am sometimes inspired by a
> partially downloaded image. When it is done loading, I realize it
> wasn't what I thought it was going to be. The actual image doesn't
> inspire me at all.
>
> Is there any legal definition for where to draw the line? (Pun
> intended.)

Several copyright infringement cases have turned on the issue of access. If the accused infringer can show that he could not have had access to the original work, then he cannot be held to have "copied" the work, and thus cannot be liable for copyright infringement. Thus if your hypothetical photographer had never heard of Ansel Adams (and could prove it) and accidentally took a picture highly (perhaps even substantially) similar to one of Adams's, there would be no infringement.

Robert C. Cumbow
 Graham & Dunn PC
 1420 Fifth Avenue, 33rd Floor
 Seattle, WA 98101-2390
 206.340.9619
 206.340.9599 fax
 rcumbow[_at_]grahamdunn.com
 http://www.grahamdunn.com/  

        Big law firm experience
without the big law firm experience SM

CONFIDENTIALITY NOTICE
This email message may be protected by the attorney/client privilege, work product doctrine or other confidentiality protection. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it. Thank you. Received on Thu Aug 03 2000 - 16:27:13 GMT