Re: Derivative of digital image

On 07/28/97, 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.

I hesitated to weigh in on this until Mark confirmed what my scan of BNA's USPQ 2nd and 3rd confirmed last night: The same people doing public relations for Elvis must actively support this mythic "Percentage Rule" for artistic borrowing. It is an amazingly prevalent misconception (this weekend alone a graphic artist threw out 20% as the amount that he could "copy" without ramification).

I too know of no U.S. cases sanctioning any fixed "portion or percentage rule" and the genesis of this approach might be found in some of the fair use studies and classroom photocopy quidelines. Percentages were used in describing many instances of photocopying (for example, in the context of how many articles from a journal can be copied). If anyone is aware of any "bright line" rules on this issue, please advise.

Jamie Powers
<jamie[_at_]srgpe.com> Received on Tue Jul 29 1997 - 13:44:07 GMT