Some basic copyright questions to discuss

[walkerm]

Hello

I came across this forum while searching some information about copyright law. I've been interested in that topic for the last years but there are still some unanswered questions. I do like to discuss about these issues, but so far I haven't been able to find people who have the knowledge to give reasonable answers. If these kind of questions do not belong here, I'm sorry. But I think I might get answers or some ideas here. Some questions are more of an academic approach.

I'm not a native english speaker. If there is any misunderstanding please let me know. I hope to get some answers, the text is long but there are numbers 1-4, so you don't have to read it all.

1) Regarding copyright protection: It seems to me that every stock photo agency and also the infringers assume that the pictures are copyright protected. However,
- US copyright requires the work to be 'original', meaning that it needs a minimal degree of creativity.
- EU copyright requires the work to be 'original' or 'the author's own intellectual creation', both meaning that it needs a minimal degree of creativity.

With that in mind let's assume I get sued for selling posters of 20 getty pictures of a celebrity on the red carpet on one event. I do not have a licence.

Could't I argue that those pictures are not copyright protected and therefore there can't be an infringement? Surely, it took some skill to take these photos, but creativity? If I see photographers taking pictures at these big events it's all about taking as many pictures as possible and then sorting out those who are sellable. I do understand that some argue that what is worth copying is worth protecting, but I'm missing the creativity requirement in that approach.

And something else came to my mind:
Let's assume those 20 pictures look all more or less the same and were all taken by one photographer.
On the other hand: Let's assume those 20 pictures look all more or less the same and were taken by 20 photographers.
Could that open the field for some arguments against protection? Could I for example say that they all look the same so only one picture can be protected? Or could I for example say that 19 photographers violated the copyright of the guy who took the first photograph? Would it make a difference if the 19 photographers knew how that first picture looked like or didn't know how it looked like?

2) Regarding private international law: As far as I read in wikipedia, in IP cases it is broadly accepted that the law of the country for which legal protection for the intellectual property is claimed applies.

What would that mean if I life in country A and infringed the copyright of someone who lived in B by uploading a protected picture to the internet? The laymans perspective seems to be that the law of the country in which the server of the website is applies. And if you tell people that they should be careful about just assuming that and telling them conflict of laws was a difficult area, you will get called an idiot (at least my experience). So am I an idiot or is it really that simple in an 'internet case'? And what does it generally mean to say the law of the country for which legal protection for the intellectual property is claimed applies? Is that usually the country where the infringement takes place? And where does the infringement take place?

3) Regarding private use of pictures and getty images
I know that getty allows people to embed a lot of their pictures (although not in the original size, which strangely doesn't seem to be a problem to anyone using that function.) To me getty didn't really make their pictures free with these minipictures...
But what I am missing is information about private use of pictures, meaning that I just want a getty picture to store on my PC and look at it from time to time. I don't want to upload it to a webpage and therewith make it vulnerable to copyright infringement by others, nor do I want to use it commercially. Sure I can browse a lot of websites to download full-size getty pictures from companies that have licenced some pictures, but what I'm missing is a relatively inexpensive alternative to commercial and also 'non-commercial but vulnerable to infringement use'. Does that exist? I have not found that question anywhere, which seems strange to me. I think there are a lot of people who just want to have some good quality images for purely private use.

And speaking about storing pictures on my PC. I know that this is perfectly legal under the law of my country. But then again there is this issue about conflict of law (see above number 3)). I would not think that in that scenario any foreign law could possibly apply, but I just dont know.

4) Regarding imageboards: A lot of imageboards on the internet have copyright protected material and surely the uploaders in most cases are not the holders of the IP rights or have a licence. I assume in a lot of cases people are not even aware that what they are doing is illegal. (not the actual question, but it just came to my mind: Does it make a difference if they knew their actions were copyright infringing?)
What I don't understand is how these sites can exist if there is so much copyright violation ongoing. Is nothing done about that? As far as I see sometimes the site gets notified by the rightholder and takes down a picture. But what about the user who infringed?

And what about the site itself: Can it be held liable for the copyright violations of the users? You can't tell me that just by stating 'do not upload any copyright protected material to our site' they can't be held liable. I'm sure they know that there is massive copyright infringement every day. Is that something that is discussed under the title 'vicarious liability' or 'contributory infringement' (for the US)?


So I really hope to get some answers to some of my questions/thoughts. Thank you for reading.

M. Walker

[Robert Krausankas (BuddhaPi)]

I'll contribute here, as I have time...my comments regard US law only..
you state:
1) Regarding copyright protection: It seems to me that every stock photo agency and also the infringers assume that the pictures are copyright protected. However,
- US copyright requires the work to be 'original', meaning that it needs a minimal degree of creativity.

FALSE...copyright exists at the moment of creation.."creativity" has nothing to do with anything... The degree of "protection" depends on if the image is properly registered, but there remains some level of protection regardless.

you state:
With that in mind let's assume I get sued for selling posters of 20 getty pictures of a celebrity on the red carpet on one event. I do not have a licence.

Could't I argue that those pictures are not copyright protected and therefore there can't be an infringement? Surely, it took some skill to take these photos, but creativity? If I see photographers taking pictures at these big events it's all about taking as many pictures as possible and then sorting out those who are sellable. I do understand that some argue that what is worth copying is worth protecting, but I'm missing the creativity requirement in that approach.

You can argue whatever you like, the facts speak for themselves, if you used a getty image or any image you did not create without a valid license, you have infringed...and may be could liable for such. You are missing the creativity requirement, because there is none.

you state"
And something else came to my mind:
Let's assume those 20 pictures look all more or less the same and were all taken by one photographer.
On the other hand: Let's assume those 20 pictures look all more or less the same and were taken by 20 photographers.
Could that open the field for some arguments against protection? Could I for example say that they all look the same so only one picture can be protected? Or could I for example say that 19 photographers violated the copyright of the guy who took the first photograph? Would it make a difference if the 19 photographers knew how that first picture looked like or didn't know how it looked like?

Ummm no..as stated before copyright exists at the moment of creation, 20 photogs standing in a row, could take pictures of the same subject, but they each own the copyright to "their images"..naturally there will be slight differences to each image, ie different shutter speeds, different focal lenghts, different apertures, etc..making each image unique...again argue all you want about it, if the photog has a properly licensed image, and perhaps the raw file to back up their claim( which many keep on record) you're argument would likely fail.

more later when time per mits.

[walkerm]

FALSE...copyright exists at the moment of creation.."creativity" has nothing to do with anything... The degree of "protection" depends on if the image is properly registered, but there remains some level of protection regardless.

That can't be true. Every copyright law requires a work to have a minimal degree of creativity. That's probably the first thing you get told in copyright class. Copyright registration has nothing to do with the requirements of copyright protection. Requirements of copyright protection are originality, tangibility and a minimal degree of creativity.

I just cite from this source (https://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/creativity-requirement/):

The copyright law requires that for a work to be protected by copyright, it must be [...] creative.  This means that the work [...] should have some creativity involved in the creation. [...]
Creativity is therefore one of the basic requirements for copyright protection. [...]
A work must have a minimum amount of creativity over and above the independent creation requirement for getting copyright protection. Works completely lacking in creativity are denied copyright protection even if they have been independently created.

or Feist Pulbications v. Rural Telephone Service Co., 499 U.S. 340

Think about this: If it would not require creativity, I could just take a photograph of Da Vincis's Mona Lisa and have a copyright in the picture I took.

And my point is, that these stock photographs do lack creativity, or at least you could argue that.

I do not know about the requirements of registration, but it seems likely that you can register anything you want. What a court will decide in a specific case regarding your registered work is a different question. It could be held that your work does not have a minimal degree of creativity.

Citing again:
"All cases will be judged on their own details, and if the other party can prove they created the work or one sufficiently similar to it before you did then they will be able to claim a copyright infringement. However, registering your work will help you prove that you were in possession of it at a particular date, and can therefore help you in a legal dispute where you need to prove that you were the first person to create the work in question."

That also leads to citing you again:

as stated before copyright exists at the moment of creation, 20 photogs standing in a row, could take pictures of the same subject, but they each own the copyright to "their images"..naturally there will be slight differences to each image

Even though there are some minimal differences, there are a lot of similarities as well. So my point is, as long as there is no proof of copying (which is unlikely in that red carpet scenario) a substantial similarity is unproblematic and all the pictures are protected, if they meet the creativity requirement.

[stinger]

That can't be true.

You can argue all you want.  Courts love arguments.  That's what keeps them in business.  But Robert is a professional photographer and knows whereof he speaks.

You can tell the judge that you took a class somewhere that says creativity is a necessary component of copyright.  Unfortunately, the judge (if in the U.S.) is likely going to bring out the Digital Media Copyright Act and quote law at you while passing his judgement.  You might want to google DMCA and read a bit of it.

If you want to get philosophical, you might want to ask yourself how one measures creativity.  Then ask yourself how photographers measure creativity.  To a novice with an iPhone, these things might be happenstance, but to a photographer issues like framing, lighting, filters, colors, just about any aspect you can modify with photo editing software, are part of their creativity.  When looked at from that point of view, those 20 pictures taken by 20 different photographers might each be very different creative works.

[Robert Krausankas (BuddhaPi)]

You're argument is flawed IMHO....I suggest you read the entire article you linked to to learn more about the "creatvity" aspect, we are talking about photographs and images here, not a listing for a recipe, or the whitepages ,but at stated before you can "argue" whatever you like.. but in defense i would simply argue and refute your claim, by stating I set up my camera with certain settings, such as shutterspeed, aperture, amount of flash, depth of field etc.to create my image, that in and of itself would set the "creativity" you speak of..to further that I then "process" the image, ie "edit" the image, as all RAW files must be edited to some degree, my editing of this image also adds to the creativity.

I might suggest you read the actual law as stated:

https://www.copyright.gov/circs/circ01.pdf

https://www.copyright.gov/title17/92chap1.html

You're Mona Lisa argument is also flawed, that image is in the public domain, as is anything created before 1923 ( i believe).. so yes you could take a picture of that iconic image, own the copyright of "your" image, and also sell that image if you so choose too.

[Robert Krausankas (BuddhaPi)]

In regards to question number 4, the answers lie within the DMCA statutes, which affords the sites in question safe harbor from infringement claims, providing they have a registered agent, and follow the rules set forth.

[walkerm]

so yes you could take a picture of that iconic image, own the copyright of "your" image, and also sell that image if you so choose too.

So let's say person A goes to the Louvre and makes a photograph of the Mona Lisa and sells posters of it. Person B buys one of these posters and sees that he might make some money with that idea as well. So he goes to the Louvre and takes a photograph himself and then sells posters of his own photograph. All 3 pictures look the same (the painting, A's and B's photograph).

Why is B not infringing A's copyright? B had access to A's picture and there is a striking similarity or let's even say that there are some minor differences in lightning etc. (because it doesn't make a difference if there are some minor differences).


Ok let's get that question 1) aside. I know I take a lot of your time, so I dont want to insist on getting answers on my other questions. But what would really interest me (and gladly it's not an academic question, so it should be easy to anwer with not much space for dispute) is my question number 3) I just post it here again

I know that getty allows people to embed a lot of their pictures (although not in the original size, which strangely doesn't seem to be a problem to anyone using that function.) To me getty didn't really make their pictures free with these minipictures...
But what I am missing is information about private use of pictures, meaning that I just want a getty picture to store on my PC and look at it from time to time. I don't want to upload it to a webpage and therewith make it vulnerable to copyright infringement by others, nor do I want to use it commercially. Sure I can browse a lot of websites to download full-size getty pictures from companies that have licenced some pictures, but what I'm missing is a relatively inexpensive alternative to commercial and also 'non-commercial but vulnerable to infringement use'. Does that exist? I have not found that question anywhere, which seems strange to me. I think there are a lot of people who just want to have some good quality images for purely private use.

Reading it again, I guess I could just contact getty. But maybe someone knows if this sort of licence I'm looking for is just not a common thing to offer for stock photo agencies.

[Robert Krausankas (BuddhaPi)]

Getty is a commercial business, they license images for different uses, at different price points, IE royalty free, rights managed etc..they are in business to sell images, not to give them away for "personal use" so to my knowledge no such license exists....

to get back to question #1...you're over thinking it...it's really very simple... ceate an image, you own the copyright to it.

[DavidVGoliath]

With that in mind let's assume I get sued for selling posters of 20 Getty pictures of a celebrity on the red carpet of one event. I do not have a license.

That would, straight up, be twenty counts of infringement right there (assuming these are twenty different photographs and not twenty copies of one photograph); that you would be selling them for profit would leave the door open for a willful infringement claim.

Could't I argue that those pictures are not copyright protected and therefore there can't be an infringement?

You can argue that white is black, up is down, left is right... or that you think that the images aren't protected by copyright. Your opinions will not necessarily be backed up by evidence, facts or law

Surely, it took some skill to take these photos, but creativity? If I see photographers taking pictures at these big events it's all about taking as many pictures as possible and then sorting out those who are sellable. I do understand that some argue that what is worth copying is worth protecting, but I'm missing the creativity requirement in that approach.

I've worked high-profile red carpet events with A-list attendees and you need both skill and creativity. Skill comes in knowing how to set your gear to capture the moment. Creativity comes in the selection of variables to craft a particular aesthetic including, but not limited to, your choice of camera, lens, aperture setting, focal length, ISO, shutter speed... then there's whether you're using on-camera flash, remotely triggered flash, ambient light or some combination of the three. There's the choice on how to frame your subject, the merits of distance-to-subject as regards depth of field and background separation, and a dozen other on-the-fly variables that you have to adjust on account of reacting to an event as opposed to being in a controlled studio environment.

And something else came to my mind: Let's assume those 20 pictures look all more or less the same and were all taken by one photographer.

... we're back at twenty counts of infringement, as this suggests you're selling twenty different posters (or thinking about it)

On the other hand: Let's assume those 20 pictures look all more or less the same and were taken by 20 photographers. Could that open the field for some arguments against protection?

Nope

Could I, for example, say that they all look the same so only one picture can be protected?

Nope

Or could I, for example, say that 19 photographers violated the copyright of the guy who took the first photograph?

Nope, x19.

I have been elbow-to-elbow with other photographers at red carpet events. The chances of anyone using exactly the same creative choices as I am, at the exact same moment, are so minuscule so as to be practically non-existent. I've looked at the resultant work of some photographers and, in some instances where we have captured almost exactly the same moment, there are noticeable differences in the frames when you look at them.... and that, right there, is what the courts term 'originality' as pertaining to copyright.

Would it make a difference if the 19 photographers knew how that first picture looked like or didn't know how it looked like?

Trust me. If I'm photographer #1 in this scenario, I really am not thinking or caring about what the other nineteen photographers captured (or didn't capture). My priority is getting images to my client as fast as possible, ensuring they are correctly captioned and have all relevant metadata embedded.
We'll all joke with each other whilst waiting around but, come go time, it's a professional work environment.

[DavidVGoliath]

2) Regarding private international law: As far as I read in Wikipedia, in IP cases it is broadly accepted that the law of the country for which legal protection for the intellectual property is claimed applies.

There are several international treaties regarding copyrights; the net effect of these treaties is that the work of X, who lives in Country A, will equally have their copyrights respected under the laws of Country B.

Accordingly, if X discovers that they have been infringed in Country B, they can seek representation to bring a court action in that country.

What would that mean if I live in country A and infringed the copyright of someone who lived in B by uploading a protected picture to the internet?

Depending on the specifics, it would mean that you would be sued through the court system of the country in which you live.

The layman's perspective seems to be that the law of the country in which the server of the website applies.

Nope, although there are jurisdictional issues that could apply.

If the person who uploaded the photograph lives in a Country B, the complaint would generally be against the person who infringed. Most countries now have laws on their books that mean the third parties such as web hosting services are not liable for acts caused by people who infringe, unless

A) They knew about the infringement

and/or

B) They refused to delete infringing material when asked to do so

That's perhaps a simplification of the laws in play, but you should get the gist.

[Robert Krausankas (BuddhaPi)]

I'll just drop this here, as it somewhat applies to the discussion:

https://petapixel.com/2017/02/08/imitation-vs-copying-photography-issue-derivative-works/

[DavidVGoliath]

Robert, that's an excellent and timely blog on some of the issues that can come into play. With that said, different jurisdictions can - and have - a different view of plagiarism of the type as discussed in the PetaPixel article you linked to... the one that sprang to my mind when reading it was this

http://www.azrights.com/media/news-and-media/blog/database/2013/11/photographers-photography-copyright-and-the-red-bus-case

Without wishing to go off on a tangent, it's entirely possible that if Mr. Eward McGowan were to bring a copyright infringement action in the German courts, they might well find in his favour.