Copyrights on Images and Content
Is copyright law practical?

Most of us have a love/hate relationship with copyright law, and right now times are getting very trying. We have been facing some tough challenges due to the new venues provided by the Internet, and are facing even more. Copyright law protects our creative work from misuse, and we constantly have to be wary of allowing our works to fall into the public domain. On the other hand, most of us are usually using others' creative works in some way, and we constantly have to gauge whether to pay for that right, simply let it influence our own creative work, or engage it in some type of "Fair Use."

Music, art (including photographs), movies, and words are all protected by copyright, and logos and product names are protected by service marks and registration. The actual copyright process is reasonably automatic: The creator or owner of works that are identified gets the credit and control. Misuse of others' works comes with the threat of a penalty. For example, if a screenwriter thinks his work has been plagiarized, he can stop the production of a film and leave millions of dollars in limbo. A musician can sue someone who uses his music and grab the profits from the person who misused it. Similarly, artists can sue, as well as writers who believe their content is pirated. I personally purchase usage licenses for all of these things in different venues. It's generally reasonably affordable, but often a waste of money. But I respect the original creator's rights, and those of the industry.

In the coming months, the courts are going to have to define what "content" is, for art, and hopefully soon for written works. The defining case is the modified portrait of an Obama photo published by the AP news service. AP reportedly wanted the artist to pay a usage fee plus damages for using the photo as the broad basis of the portrait. The artist is suing AP saying it was "Fair Use." See the story at CNN (http://politicalticker.blogs.cnn.com/2009/02/10/obama-hope-artist-files-suit-against-ap/).

By the way, I listened to a similar story on National Public Radio (NPR), which influenced what I am writing here. Or was that Public Radio International (PRI)? As you can see, as creatives we are influenced by many sources, and even proper attribution is a problem. I didn't go to a "primary source" and interview the artist or AP myself, as many large news organizations typically would for direct confirmation of their story. But my purpose is not to report the exact stories, it is simply to analyze the "form" of that story, not use the content. I didn't use any content, so there are no quotes. But it is a sticky area.

The other story, which is not in the news, is another problem occurring on the Internet, and applies to everyone who publishes, whether on the Internet, in electronic books (ebooks), or in print. That problem is the reproduction of creatives original work in an altered form.

Here is what happens. An unscrupulous Internet publisher spots a successful Internet Web site or book that he would like to duplicate to get advertising revenue. So he goes to a freelance marketplace site on the Web, and advertises for a writer to rewrite the entire site in his own words. This may amount to hundreds of pages. The publisher then checks the content using anti-plagiarism tools, and then launches a new site that is a virtual duplicate of the original. It has no greater benefit to the site visitors than the original site. That site then gets the advertising revenue instead of the original content creator.

Anti-plagiarism tools simply look to see if a phrase has been used before. So content that has been reworded won't show up as plagiarized, even though the content is identical.

You can't copyright ideas or titles of written works, only content. Ideas and titles are the "form," or "concept." Content comprises the details. The details for any concept or form can vary immensely. It is the details that are important. It is detail that spells out the unique message in the writing.

The AP photo rendering case argues that any use of the photo is protected by copyright law. The artist argues that he changed the details significantly, and this fits within the "Fair Use" of the material. He changed not only the form (Obama's gaze and other minor details), but most significantly he changed the content by changing the coloring and adding the word "Hope."

One problem is that for both written works and art, copyright law covers derivative works. A derivative is some work that has the same features as the original. For example, I write plays for which I sell performance rights. If someone wants to shorten, change, or expand the play, then that is a derivative work and requires my permission. However, someone can quote a short section of my play without even asking my permission. Quoting is "Fair Use" under the copyright law.

The problem for the AP photo rendering of Obama is whether or not it can be considered a derivative work. Similarly, the problem for people who are rewriting others' Web sites is, can the new work be considered a derivative work. If substantial portions appear to be rewritten, then it would most likely be considered a derivative, especially if no new or original point of view is expressed.

Stickier still is the difficulty that artists face with original compositions that may include elements that the artist has never actually seen first-hand (or is that first-eye?). For example, today I ate in a Mexican restaurant, and on the wall was a fantastic giant fresco of an architectural scene representing Mexico. Suppose that the artist had never been to Mexico. So the artist uses a magazine containing pictures of Mexico, and from elements within these creates a new composition that doesn't reflect any single picture, but does use elements from many. Where does composition cross the line into plagiarism? We can't expect an artist who is commissioned to paint something to go to Mexico or China to collect information first-hand - it would be extravagantly expensive for both the artist and the company commissioning the art.

To me, the question on art hinges on whether the art contains common images, or something that is unique. A chair is a chair. But a one-of-a-kind chair is unique, and only the one who took the picture should have copyright to that specific image. Another person would have to either pay a usage fee, or go take a picture himself. Some pictures are very unique and very valuable. For example, from the Viet Nam war era there are two famous pictures that come to mind. One is a Vietnamese officer holding a gun to the head of a suspected whatever, to kill him. The other is a young naked child walking down a muddy road from a war area. Both of these pictures are very unique. They made major impressons on the human psyche. Most other images would have generic content from which derivative works would be indistinguishable from similar pictures.

Form and concept are not so important. Anyone can place people in a pose resembling those in the paintings of The Mona Lisa, or Whistler's Mother, and create a similar painting. But a replica, even if there are minor changes, would impinge on the original. Otherwise there would only be one nude painting. There would only be one picture of an apple by a vase. In the Louvre in France, you find painting after painting by great masters and from others in the same period, to the point of tedium, so that one character in a painting looks like one from another - just part of the environment. But in Les Noces De Cana (The Wedding Feast at Cana, by late-Renaissance Italian painter, Paolo Veronese), the characters (guests, musicians, and servers) are unique.

In an interesting twist, the copy of a Greek statue of Pan removing a thorn from a Satyr (Pan retirant une épine du pied d'un satyre) was copied numerous times over the Roman Empire, but today a picture of a copy of the statue can be copyrighted. Yet nothing new can be added to the picture except lighting, photographic angle, and contextual surroundings.*¹

1. Museums often prevent the taking of pictures of their display items so that they can sell books of pictures to support the museum. They also restrict the use of lighting and flashbulbs to prevent degradation of color.

Where do images cross the line from form to content? Is a tracing or silhouette form or content? Is a particular angle form or content? Is a part of the image extractable?

One famous series of paintings is of various types of dogs sitting around a poker table, just like their human counterparts. Could another artist paint a similar picture, say of Dalmatians sitting around a poker table? I think not - it would infringe on the artist's work. But isn't this just an infringement on form? No. Dogs are a concept, or detail, and people relate strongly to the picture. It is a composition that communicates an idea.

I do a similar thing with an image on the Challenges (What Kind of World) section of this Web site. The banner has five men standing in front of urinals, plus a woman. Each is in a unique position. Then there is a composite of one person standing in front of a urinal. The caption is "Pluralism/Uniformity." We don't want to all be required to stand the same way when do our necessary business. Pluralism is a value of our society. Can some other artist (I hesitate to call myself an artist with my meager talents), create and sell a similar picture? No, they would have to show people doing something else. But it might not have the same impact as the basic need that I portrayed.

In some cases, concept, or even form, may be important. I think that on a case by case basis, the answer is going to be on whether or not the image is general or unique? Does it display something unique, or communicate something unique? I think the same should apply to written and verbal content. At minimum, content that is original or unique must have attributions and permissions for use, except for quotes, and no rewriting major portions of others' compositions in your own words.

Uniqueness is similar to the protection afforded to company logos and names. Brands are built around the uniquely identifiable image or name. One brand may be marketed so that the logo represents new and state-of-the-art products, while another may represent established and reliable products. I think that copyright of art and written words should offer similar protections. Styles come and go, but a particular concept that communicates should be protected.

Form, concept, detail, generic, unique

Form is the shape or structure or essential nature of something. It lacks detail. It lacks substance. A picture of Obama, from any angle, is a form. Without detail and context, the image communicates very little. Today it is unique; tomorrow it is blasé. Pattern can mean the same thing as form, but more typically means the occurrence or frequency of occurrence of some part of a form. A facial gesture might be a pattern of expression in a form. People generally laugh, cry, despair, etc. - these are common things that people do, even Presidents.

A concept is an abstract generalization of something. Concepts typically lack detail, but communicate ideas.

In my study of semiotics, particularly of visual communications, I show how an image, a sound, a word, or a recurring pattern can communicate complex information or a mood. Composition is very important. Composition engages context and other items to communicate an idea or emotion. Without these things, the form is generic. It generally isn't until we use a concept that we begin to communicate, and a concept is portrayed in details.

Does a form communicate? It is generic communication. I don't see how we can copyright a form in picture any more than we can copyright the sound of rain on a roof that makes people relaxed. It could happen if it was so unique that it could not be commonly repeated.

Creatives want to control both the use of their work, and the economic advantages of their work. The point of the intellectual property law is to prevent opportunists from stealing others' work and using it. Personally, I create a lot of work, some of which is for money, and much of which is for public benefit. But it is copyrighted work and I control the use of the material even if it is free for public use.

None of the information in this article is legal advice, and no decisions should be made on the basis of this article. It is simply part of the ongoing dialogue.

- Scott

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