Re: Derivative of digital image

On 7/28/97, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> On 7/25/97, Georgia Rothacker <gerrc[_at_]rc.rit.edu> wrote:
> >
> > A young imaging scientist in my company asked, "What is the percentage
> > of a digital image (authored by another and downloaded off the web)
> > that must be changed in order for the work to be considered a new
> > work?" My initial response was that only the author has the right to
> > prepare a derivative. The scientist stated that he is sure there is
> > case law that has established guidelines in this regard. Please advise.
> >
> ****************
>
> If an altered work is substantially similar in any significant part of
> its protectable expression, it is an infringement (unless there is an
> applicable defense, such as fair use). "Substantially similar",
> "similar in any significant part," and "protectable expression" are
> all terms notable for their ambiguity and context-specific nature. I
> do not believe there are any "guidelines" on how much must be changed,
> though I have heard many myths to this effect.

It is also important to remember that, for the purpose of determining both substantial similarity and fair use, courts look not just at the quantity of material copied but also at its quality. Quality in this sense refers to the qualitative importance of the copied portion relative to the whole. A good example that comes to mind is the case in which a very small portion of Gerald Ford's soon-to-be-published memoirs was published w/o permission by a magazine (the Nation?). The fact that the copied portion was published while the memoirs as a whole were still unpublished certainly made it more difficult to prove the fair use defense. But the court emphasized, in nailing the copyist, that the 300 or so copied words dealt with the most important part of the Ford presidency--his decision process leading up the pardoning of Richard Nixon.

John R. Allison
Graduate School of Business
University of Texas at Austin
allisonj[_at_]mail.utexas.edu, Received on Tue Jul 29 1997 - 13:12:01 GMT