Re: Copyright Infringement & Image Visual Similarity

On Tue, 27 Jul 1999, M. Green <vexpert[_at_]visualexpert.com> wrote:
>
> Someone takes an copyrighted image, say from a web site, modifies it
> (color, size, clipping, rotation, etc) and the uses. Are there any
> criteria for deciding whether the new image is sufficiently similar
> to the original as to consititute copyright violation. The criteria
> that I'm seeking are not just legal (how and by whom the image is
> used) but visual similarity...

Hello, from Madrid.

I think that there are two kinds of copyright laws, relating your question:

1. Those who require the authorization of the pre-existing work's author as a necassary requirement to *own* the derivative work: This is the case of the United States, and therefore any author of a pretended derivative work has to have an authorization of all the elements of other works used.
2. Those countries that *do not* require the authorization of the pre-existing work's author in order to *own* the derivative work (called in the European context, a work result of an act of "transformation").This has tradicionnaly been the case of Spain, although the fact that the Criminal Code has recently changed, do not let us know how it will be interpreted farther on.

In effect, the Spanish copyright law does require an authorization to use the preexisting work. But a traditional body of judicial sentences state that if the transformation is made with enough respect, although brought about without authorization, the there is *no Criminal liability*. Therefore, there is only civil liability: but the author can own the derivative work, given that he/she is the author of the transformation.

In both cases, I see that the tribunals demand that there must be a +substantial change+ in order to appreciate that a (derivative) work is *new*. (In other words, the fact that there is substantial similarity, would implie plagiarism.)

But your question is: When can we appreciate that there is substancial similarity?

This is a question that cannot be answered without reference to experience. It depends of the kind of work, and the uses accepted in the branch of the kind of work in question, and the author's intention. Anyway, there is a criterion that can serve for all types of works: there must be a change of +unity of composition+.

It means that, more important that the number of changes (that might only be hiding the intention of "occulting" the previous work), is the relevance of the changes to create a new work, seen from a new point of view or criterion of composition. For example, in the case of a scanned image of a young woman, more important than changing many elements, would be changing some of them that might give the aspect that she is a marcian, or is in an extraterrestial world. I give this example in Macworld (Spain), in 1995.

The unity of composition, the view, the "dream", has changed, although using a preexisting work.

Regards,

Carlos de Miguel
Attorney at Law -Spain-.
Previous professor of Commercial Law at Universidad Complutense. Castellana 179, 28046 Madrid.
<c_miguel[_at_]idecnet.com> Received on Wed Jul 28 1999 - 12:27:31 GMT