Re: Alteration of News Photo

Brian Lewis <lawman[_at_]wizards.com> writes:
>
> The computer enhancement to remove the words "The Daily News" from the
> photo violates the creator's moral rights to preserve the integrity and
> attribution of the work. This appears a pretty egregis violation
> because of the obviously intentional way in which the Post created the
> modification and would at first appear an easy case to make. This is
> predicated on the assumption that the Daily News could convince the
> photographer, and not the owner of the copyrights to assert these claims.
>

What moral rights? This was published in the US, right? I don't see how the photograph fits within 17 U.S.C. sec. 106A.

There might be a claim here for passing off -- an adulterated photo has been represented as the real thing, presumably with credit to the photographer.

Similarly, there might be a claim for copyright infringement based on the unauthorized creation of a derivative work. Whether this would prevail will depend on whether a derivative work has actually been created -- in the 9th Circuit, everything is a derivative work; outside the 9th Circuit, in courts adopting the Goldstein test, the question is whether the Post added copyrightable expression.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Published at last: Merges, Menell, Lemley & Jorde, Intellectual Property  in the New Technological Age (Aspen Law & Business 1997)

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Wed Jun 04 1997 - 16:18:18 GMT