RE: Re: How about a latent image?

Prof. Jamar wrote: "Copyright is not about art or novelty or creativity at the basic level."

I would like to believe copyright is about "Creativity". Otherwise, I see little point in having copyright. I suspect our founding fathers were thinking about a much broader idea of "originality" than what this thread has been discussing. When we let copyright cover so many little things, especially photos of what is there for all to see - like El Capitan - then I believe we may have gone too far. If everyone taking a photo from a "Kodak Picture Point" can claim copyright, after say 1000 shots, how can we determine originality? Originality than approaches the concept of duplication. I can't imagine that even if our founding fathers could have anticipated modern technologies that they would want to define "originality" so broadly. The meaning of copyright starts to fade from consciousness. Since U.S. copyright was developed to economically motivate creators to create for the public good, super narrow definitions move the balance toward the creator and away from the public.

Sincerely,

Robert Panzer

VAGA (Visual Artists and Galleries Association) 350 Fifth Avenue
Suite 2820
New York, NY 10118
tel: 212 736 6666
fax: 212 736 6767
rpanzer[_at_]vagarights.com

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of Steven Jamar Sent: Monday, August 23, 2004 3:11 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: How about a latent image?

On Friday, August 20, 2004, at 02:30 PM, Robert Panzer wrote:

> If one studies the Adams' photo and tries to reproduce all creative
> elements
> of it, contrasts, shades, texture, etc., then I think there may be
> infringement. This would be especially true for Adams' images because
> he
> did significant work in the darkroom to make his pictures look so
> special.
> My understanding was that he used a variety of techniques in the
> darkroom,
> almost akin to painting, to create the final images.

If one copies the original elements, i.e., not El Capitan, but other enhancements, then there could possibly be a case for infringement. Though intent usually doesn't matter, it could in this sort of case.

> But if someone takes a
> shot of El Capitan from the exact same spot and angle Adams' did, even
> after
> studying the Adams' image, I think those two choices, in the case of
> most of
> his images, would not be sufficiently original to qualify for
> protection.

Why not? It is an original creation -- it originated with the photographer. The fact that the scene exists in nature and that someone else has taken a famous picture of it doesn't change that. All those "Kodak Picture Points" or whatever they are called where Kodak puts up suggested pictures -- each person taking a photo of that scene gets a copyright, no matter how thin, in the pedestrian photo. Copyright is not about art or novelty or creativity at the basic level. In any scene in nature or in any cityscape, there is selection, framing, film, camera, and other "choices" (in quotes because lots of people take snapshots without making any choices, really, other than framing -- the camera makes them for them) sufficient to make the picture original.
I suppose one could argue, and perhaps a court would buy it, that a photo intending to recapture a famous photograph is not copyrightable for the same reason that a photograph of painting in which the whole intention is to create as exact a copy with as true colors as possible is a copy and not an original or derivative work. Does the second Psycho, which is a color version of the first Psycho, scene for scene, but with different actors, not get copyright protection because it is a remake? No. It gets protection as a derivative work even if it is virtually identical to the original, but for the color and the actors -- and even they are intended to be similar in look and action to the first cast. It gets a copyright as a derivative work. It is not a copy.

Steve

--
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"I care not what subject is taught if only it be taught well."

Thomas H. Huxley


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