Re: Copyright in Fireworks

Kenneth L. Kunkle <kenneth[_at_]kunkle.com> wrote:
>
> I've never heard of a company trying to enforce their rights like
> this, however, it seems to me that if a photographer takes a photo
> that exploits the designs of a "designed" display (e.g. shell
> placement, color, etc) the designer should have a right to compensation.
> Additionally, if a designer has an original way of expressing something
> (e.g. a new way to choreograph a song) it seems to me that other
> companies shouldn't be able to come along and copy it. There is no
> reason why a display should be treated any different that a song,
> ballet, or painting. While choreography is the easiest thing analogize
> this to, in fact the art of display design is similar to musical
> creation, sculptural works (you must design a display in 3 dimensions
> to be seen from all angles), a painting (often the colors hanging in the
> sky in patterns or combination is the intent of the design), or a dance
> (rhythm, placement, and pacing).

While not disagreeing with the logic, by extension then a company manufacturing public water fountain displays with varying heights of water spray together with variations of colored lighting for night time effect could also claim copyright infringement against the photographer and publisher for the unauthorized publication of the water fountain display in postcard or calendar format. At some point claims of copyright seem a little ridiculous. For decades no one ever raised an objection to the calendar publication of a night view of a water fountain display. Copyright permissions were required from the photographer, but not from the company that manufactured and designed the water fountain system and its coordinated use of varying spray heights and colored lighting. Copyright claims sometime seem like an ameba. Tentacles seem to continually reach out and make claims to impede the publisher over issues that as a matter of past practice in the trade were never even considered as a valid copyright.

Two hypothetical questions: Scenario: One night Photo Joe takes pictures of a well choreographed fireworks or water fountain display, without arranging for permission from the company or person creating such display. Photo Joe has the photos developed at Developer Dave's. Photo Joe thinks the photos are truly exceptional, so he shows them to the Big Calendar Company, which, in turn, agrees to license 13 images for a cover and 12 month calendar, and to pay the photographer an 8% royalty. The calendar is published, and sales skyrocket. Pirate Pete Publishing company, always looking to knock off hot properties, quickly moves into action and successfully obtains a copy of the images from a street peddler. Pete immediately publishes the exact same photographs as a unlicensed calendar to compete with Big's version. Pete's lower price (no royalty) causes major loss of sales for Big and loss of royalty for the photographer. Both the photographer and Big file a copyright infringement claims against Pete. Could Pete successfully defend against the claim by proving that the photographs in question were themselves an unlawful infringement of the original copyright of the display creator, such that any award for Big or the photographer would constitute unjust enrichment for their unlawful use of the images?

One additional question: The original display creator sees the calendars and files copyright infringement claims against Big, the photographer, Pete and Developer Dave. Big, the photographer and Pete all file for bankruptcy protection. Damages are determined to be $1,000,000. What liability attaches to Developer Dave for his role in developing the photos?

Leo Smith
Capital Ventures Group
<barter[_at_]ntplx.net> Received on Wed Oct 07 1998 - 22:12:07 GMT