Re: imitating photographs

>>> Linda Gruber <linda[_at_]novelart.com> 08/02 3:42 AM >>> wrote:

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.]

Hello Prof. Tyler Ochoa,

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. <<<<<

You are correct. With a well-known original like Ansel Adams, however, it would be next to impossible to prove that you did not have access to the original.

>>>>>
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. <<<<<

Last I'd heard, summary judgment in favor of Lloyd Webber was reversed, and the case was sent back to the district court for trial. Repp v. Webber, 132 F.3d 882 (2d Cir. 1997). But that was back in 1997; I never heard what happened after that. Does anyone have more recent information?

>>>>>
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.)
<<<<<

"Substantial similarity of protected expression," that is, similiarity in original "expression" but not in "ideas." Regarding the line between idea and expression, Judge Learned Hand said that "nobody has ever been able to fix that boundary and nobody ever can." We leave it to judges and juries to decide after the fact. Not very satisfactory, but it would impossible to come up with a set of clearly defined rules upon which a majority of people could agree that would allow these judgments to be made in advance.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Mon Aug 07 2000 - 20:51:23 GMT