Copyright question?

Discussion in 'Digital Photography' started by Five, Jun 11, 2004.

  1. Five

    Five Guest

    I was offered a partnership selling oil paintings.
    The paintings are copies of famous paintings, however,
    they are painted by a painter who is not the original
    artist, and signed by the artist who painted the copy.
    Is this a violation of copyright? Could I legally
    sell such paintings?


    Would this be the same as taking a famous photo
    advertisement, replacing the model, and creating a
    close likeness to the famous ad, and sell it to the
    competetor?
    Five, Jun 11, 2004
    #1
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  2. Five

    Mxsmanic Guest

    Five writes:

    > I was offered a partnership selling oil paintings.
    > The paintings are copies of famous paintings, however,
    > they are painted by a painter who is not the original
    > artist, and signed by the artist who painted the copy.
    > Is this a violation of copyright?


    Technically, yes, although painters can more easily get away with
    infringement than photographers, because they are perceived as providing
    more "creative input" into every painting, even when it's just a copy.

    Much depends on how accurate the copy is, and what the original painting
    showed.

    Also, some old paintings have expired copyrights, so they can be copied
    freely.

    > Could I legally sell such paintings?


    If you knowingly sell infringing paintings, you might have some
    liability.

    > Would this be the same as taking a famous photo
    > advertisement, replacing the model, and creating a
    > close likeness to the famous ad, and sell it to the
    > competetor?


    Yes, very similar, except that you are just selling the images, not
    producing them.

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 11, 2004
    #2
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  3. Five

    Don Stauffer Guest

    Ultimately, infringement is the decision of a judge or jury. It is hard
    to be too definitive on this. It is a gamble. It depends on how
    accurate the copy is, or is the painter just painting the same general
    idea. An idea is not patentable, but again whether the painting
    represents a copy or merely the same idea will be up to a judge or jury
    if the original copyright holder decides to sue.

    Five wrote:
    >
    > I was offered a partnership selling oil paintings.
    > The paintings are copies of famous paintings, however,
    > they are painted by a painter who is not the original
    > artist, and signed by the artist who painted the copy.
    > Is this a violation of copyright? Could I legally
    > sell such paintings?
    >
    > Would this be the same as taking a famous photo
    > advertisement, replacing the model, and creating a
    > close likeness to the famous ad, and sell it to the
    > competetor?


    --
    Don Stauffer in Minnesota

    webpage- http://www.usfamily.net/web/stauffer
    Don Stauffer, Jun 11, 2004
    #3
  4. Five

    PTRAVEL Guest

    "Don Stauffer" <> wrote in message
    news:...
    > Ultimately, infringement is the decision of a judge or jury. It is hard
    > to be too definitive on this. It is a gamble. It depends on how
    > accurate the copy is, or is the painter just painting the same general
    > idea.


    No, it is not hard to be definitive about this.

    If the "famous paintings" from which the copies are derived are protected by
    copyright, then the copies are infringing.

    If the originals are not protected by copyright , then the copies are not
    infringing.

    Period.


    An idea is not patentable, but again whether the painting
    > represents a copy or merely the same idea will be up to a judge or jury
    > if the original copyright holder decides to sue.


    There is a specific analytic framework for determining substantial
    similarity (which is the test for giving rise to the inference of copying.


    >
    > Five wrote:
    > >
    > > I was offered a partnership selling oil paintings.
    > > The paintings are copies of famous paintings, however,
    > > they are painted by a painter who is not the original
    > > artist, and signed by the artist who painted the copy.
    > > Is this a violation of copyright? Could I legally
    > > sell such paintings?
    > >
    > > Would this be the same as taking a famous photo
    > > advertisement, replacing the model, and creating a
    > > close likeness to the famous ad, and sell it to the
    > > competetor?

    >
    > --
    > Don Stauffer in Minnesota
    >
    > webpage- http://www.usfamily.net/web/stauffer
    PTRAVEL, Jun 11, 2004
    #4
  5. Five

    Mxsmanic Guest

    PTRAVEL writes:

    > If the "famous paintings" from which the copies are derived are protected by
    > copyright, then the copies are infringing.


    So reproducing a photorealistic painting of a common tourist attraction
    shown in an unremarkable way is infringement? I don't think so. How
    would you even prove that it were a copy of the painting?

    Are photos taken by an automatic photo machine copyrighted? If so, by
    whom? What about images taken by surveillance cameras?

    FWIW, at least in France, recordings of natural sounds are not protected
    by copyright.

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 11, 2004
    #5
  6. Five

    PTRAVEL Guest

    Mxsmanic <> wrote in message news:<>...
    > PTRAVEL writes:
    >
    > > If the "famous paintings" from which the copies are derived are protected by
    > > copyright, then the copies are infringing.

    >
    > So reproducing a photorealistic painting of a common tourist attraction
    > shown in an unremarkable way is infringement? I don't think so.


    Well, you think wrong. Copyright infringement results from making an
    unauthorized copy. Period. There is no "photorealistic paintings of
    common tourist sites" exception.

    > How
    > would you even prove that it were a copy of the painting?


    That's a different question entirely. Copying in an infringement
    action is proved either directly or inferentially. Copying will be
    inferred when there is proof of access to the original and substantial
    similarity. This is evaluated on a sliding scale, i.e. little
    opportunity for access requires proportionally more substantial
    similarity, and vice versa. However, if it can proven that there was
    no access, e.g. the original was always locked in a drawer, then there
    cannot be copying, regardless of the amount of substantial similarity.
    It's late in the day, and I'm tired, so I'm not going to explain
    about substantial similarity, but you can do a google search on my
    name (tauger) and the term -- I've written on it before.


    >
    > Are photos taken by an automatic photo machine copyrighted?


    Yes.

    > If so, by
    > whom?


    By the person who positioned the machine.

    > What about images taken by surveillance cameras?


    They're protected by copyright as well -- the amount of selection
    involved in positioning the machine constitutes sufficient creativity
    to result in a protectable work of authorship.

    >
    > FWIW, at least in France, recordings of natural sounds are not protected
    > by copyright.


    I don't know anything about French law, so I'll take your word for it.
    It's certainly not the case under US law.
    PTRAVEL, Jun 12, 2004
    #6
  7. Five

    Guest

    Five <Niko@fiveminutesof____.com> wrote:
    > I was offered a partnership selling oil paintings.
    > The paintings are copies of famous paintings, however,
    > they are painted by a painter who is not the original
    > artist, and signed by the artist who painted the copy.
    > Is this a violation of copyright? Could I legally
    > sell such paintings?


    The depends on the country where your business exists.
    Free legal advise is worth what it costs. Before you
    invest in this business, consult with an attorney who
    specializes in intelectual property law.
    , Jun 12, 2004
    #7
  8. Five

    Mxsmanic Guest

    PTRAVEL writes:

    > Well, you think wrong. Copyright infringement results from making an
    > unauthorized copy. Period. There is no "photorealistic paintings of
    > common tourist sites" exception.


    How do you prove that one painting is a copy of another, photorealistic
    painting?

    > That's a different question entirely.


    Perhaps, but if you can't prove it, it is effectively not infringement.

    > Copying will be inferred when there is proof of access
    > to the original and substantial similarity.


    In that case, there are millions of people infringing on someone's
    copyright on a picture of the Eiffel Tower. I wonder who holds the
    original copyright on the standard photo that everyone takes? Certainly
    everyone has access to th eoriginal, and the similarity is very
    substantial indeed.

    > By the person who positioned the machine.


    "Positioned" in what way? And if this is the case, how is anyone able
    to use the photos printed by the machine without a license?

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 12, 2004
    #8
  9. Five

    Mxsmanic Guest

    writes:

    > The depends on the country where your business exists.
    > Free legal advise is worth what it costs. Before you
    > invest in this business, consult with an attorney who
    > specializes in intelectual property law.


    Keeping in mind that attorneys will always advise the safest path, no
    matter how unworkable or impractical it will be. And keeping in mind
    also that almost any litigation in IP is a roll of the dice, which means
    that an attorney is barely any more likely to be able to predict
    outcomes than a stranger walking down the street (or posting to USENET).

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 12, 2004
    #9
  10. Five

    PTRAVEL Guest

    "Mxsmanic" <> wrote in message
    news:...
    > PTRAVEL writes:
    >
    > > Well, you think wrong. Copyright infringement results from making an
    > > unauthorized copy. Period. There is no "photorealistic paintings of
    > > common tourist sites" exception.

    >
    > How do you prove that one painting is a copy of another, photorealistic
    > painting?


    I explained it in my last post.


    >
    > > That's a different question entirely.

    >
    > Perhaps, but if you can't prove it, it is effectively not infringement.


    Nonsense. Proof of a tort and a tort are two different things.

    >
    > > Copying will be inferred when there is proof of access
    > > to the original and substantial similarity.

    >
    > In that case, there are millions of people infringing on someone's
    > copyright on a picture of the Eiffel Tower.


    Wrong. You can take all the pictures of the Eiffel Tower that you want.
    You cannot take pictures of someone elses picture of the Eiffel Tower
    without infringing the _picture's_ copyright.

    > I wonder who holds the
    > original copyright on the standard photo that everyone takes?


    All copyright maxim: "You can copy the original, but you cannot copy the
    copy."

    > Certainly
    > everyone has access to th eoriginal, and the similarity is very
    > substantial indeed.


    You don't seem to understand the concept of copyright at all. Copyright is
    protection against, inter alia, copying extended to original works of
    authorship that are fixed in a tangible medium. Anyone is free to
    photograph the Eiffel Tower -- it is in the public domain (I won't
    complicate the discussion by addressing whether it is sculpture or
    architecture). Anyone is free to take their photograph from across the
    Seine. No one is infringing anyone by doing so. However, if you copy _my_
    photo of the Eiffel Tower, you have infringed the copyright in my photo.

    >
    > > By the person who positioned the machine.

    >
    > "Positioned" in what way?


    "Positioned," as in "aimed the camera."

    >And if this is the case, how is anyone able
    > to use the photos printed by the machine without a license?


    It depends on what you mean by "use."

    >
    > --
    > Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    PTRAVEL, Jun 12, 2004
    #10
  11. Five

    PTRAVEL Guest

    "Mxsmanic" <> wrote in message
    news:...
    > writes:
    >
    > > The depends on the country where your business exists.
    > > Free legal advise is worth what it costs. Before you
    > > invest in this business, consult with an attorney who
    > > specializes in intelectual property law.

    >
    > Keeping in mind that attorneys will always advise the safest path,


    Nonsense. You don't know many attorneys. I advise what's in the interest
    of my clients, not the "safest path." Risk/benefit analysis is, at core, a
    business decision and not one that I make.

    > no
    > matter how unworkable or impractical it will be.


    As I said, you know little about attorneys and what we do.

    > And keeping in mind
    > also that almost any litigation in IP is a roll of the dice,


    More nonsense. I'm paid, and rather well, to provide my clients with
    predictions as to what the results of actions are that they propose to take.
    If I was often wrong, I'd have no clients. As for litigation, I've never
    lost a case. Hardly a roll of the dice.

    >which means
    > that an attorney is barely any more likely to be able to predict
    > outcomes than a stranger walking down the street (or posting to USENET).


    Typical statement of one who is ignorant of the law, as well as lawyers.


    >
    > --
    > Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    PTRAVEL, Jun 12, 2004
    #11
  12. Five

    Mxsmanic Guest

    PTRAVEL writes:

    > Nonsense. Proof of a tort and a tort are two different things.


    Not when it comes to actually obtaining damages or injunctions. A tort
    that cannot be proved may as well not exist, assuming that there is a
    presumption of innocence.

    > Wrong. You can take all the pictures of the Eiffel Tower that you want.
    > You cannot take pictures of someone elses picture of the Eiffel Tower
    > without infringing the _picture's_ copyright.


    But they may look exactly the same, so how do you tell which is which?
    And what makes anyone's picture of the Eiffel Tower copyrightable if it
    looks exactly like ten million other pictures of the Eiffel Tower?

    > You don't seem to understand the concept of copyright at all.


    I understand it very well. But I also note that some works are so banal
    and universal in character that one cannot prove whether they have been
    copied or not. I also recognize that some works are so lacking in
    originality that they are not copyrightable to begin with. (Actually
    these are two variations on the same notion.)

    > However, if you copy _my_ photo of the Eiffel Tower,
    > you have infringed the copyright in my photo.


    How would you know whether I had copied your photo or just taken an
    identical photo myself?

    > "Positioned," as in "aimed the camera."


    But in machines the camera is just pointed straight ahead.

    And what about the lighting?

    > It depends on what you mean by "use."


    What uses would be prohibited?

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 12, 2004
    #12
  13. Five

    Mxsmanic Guest

    PTRAVEL writes:

    > Typical statement of one who is ignorant of the law,
    > as well as lawyers.


    Typical personal attack of one who is at a loss to provide more cogent
    argument. There are four such attacks in your post.

    Apparently you don't like it when people disagree with you.

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 12, 2004
    #13
  14. Five

    PTRAVEL Guest

    "Mxsmanic" <> wrote in message
    news:...
    > PTRAVEL writes:
    >
    > > Nonsense. Proof of a tort and a tort are two different things.

    >
    > Not when it comes to actually obtaining damages or injunctions. A tort
    > that cannot be proved may as well not exist, assuming that there is a
    > presumption of innocence.


    I've explained this to you already. Copying may be proven directly or
    inferentially. Look back in this thread for an explanation of how it is
    done.

    >
    > > Wrong. You can take all the pictures of the Eiffel Tower that you want.
    > > You cannot take pictures of someone elses picture of the Eiffel Tower
    > > without infringing the _picture's_ copyright.

    >
    > But they may look exactly the same, so how do you tell which is which?


    See above.

    > And what makes anyone's picture of the Eiffel Tower copyrightable if it
    > looks exactly like ten million other pictures of the Eiffel Tower?


    The question you should be asking is why anyone would attempt to enforce
    their copyright for a picture of the Eiffel Tower that looks exactly like
    ten million other pictures of the Eiffel Tower.

    >
    > > You don't seem to understand the concept of copyright at all.

    >
    > I understand it very well. But I also note that some works are so banal
    > and universal in character that one cannot prove whether they have been
    > copied or not.


    And, with respect to such works, why would anyone attempt to enforce the
    copyright which is, at its core, an economic right?

    > I also recognize that some works are so lacking in
    > originality that they are not copyrightable to begin with. (Actually
    > these are two variations on the same notion.)


    Not really. Original expression that exhibits even a modicom of creativity
    constitutes a protectable work of authorship. There's no question that a
    photograph of the Eiffel Tower satisfies this requirement. If, however,
    that photograph looks like every touristy photograph, e.g. nothing special
    about the composition, poorly exposed, badly focused, etc., though the
    photograph is protected by copyright, why would anyone invest resources to
    protect it?

    >
    > > However, if you copy _my_ photo of the Eiffel Tower,
    > > you have infringed the copyright in my photo.

    >
    > How would you know whether I had copied your photo or just taken an
    > identical photo myself?


    As I've said, repeatedly, copying is proven directly or inferentially.

    >
    > > "Positioned," as in "aimed the camera."

    >
    > But in machines the camera is just pointed straight ahead.


    And someone made that determination. As I said, it takes very, very little
    "creativity" to result in protectable expression.

    >
    > And what about the lighting?


    What about it?

    >
    > > It depends on what you mean by "use."

    >
    > What uses would be prohibited?


    I don't know the context of your question.


    >
    > --
    > Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    PTRAVEL, Jun 12, 2004
    #14
  15. Five

    PTRAVEL Guest

    "Mxsmanic" <> wrote in message
    news:...
    > PTRAVEL writes:
    >
    > > Typical statement of one who is ignorant of the law,
    > > as well as lawyers.

    >
    > Typical personal attack of one who is at a loss to provide more cogent
    > argument. There are four such attacks in your post.
    >
    > Apparently you don't like it when people disagree with you.


    Nothing to do with what I like or don't like. You made a number of
    ridiculous statements and I called you on them.

    >
    > --
    > Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    PTRAVEL, Jun 12, 2004
    #15
  16. Five

    Mxsmanic Guest

    PTRAVEL writes:

    > Nothing to do with what I like or don't like.


    It has a great deal to do with it. You could offer the same objective
    arguments (such as they are) without the personal attacks; the fact that
    you do not implies that you consider those arguments too weak to
    adequately support your position on their own, so you feel you must
    attempt to discredit me as well.

    > You made a number of ridiculous statements and I called you on them.


    No need to provide an example in this post, but thanks anyway.

    --
    Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    Mxsmanic, Jun 13, 2004
    #16
  17. Five

    PTRAVEL Guest

    "Mxsmanic" <> wrote in message
    news:...
    > PTRAVEL writes:
    >
    > > Nothing to do with what I like or don't like.

    >
    > It has a great deal to do with it. You could offer the same objective
    > arguments (such as they are) without the personal attacks; the fact that
    > you do not implies that you consider those arguments too weak to
    > adequately support your position on their own, so you feel you must
    > attempt to discredit me as well.


    You might, then, take your own words to heart, and re-read your post which
    prompted mine.

    I have no intention of supporting my contention that this statement of
    yours:

    "Keeping in mind that attorneys will always advise the safest path, no
    matter how unworkable or impractical it will be. And keeping in mind also
    that almost any litigation in IP is a roll of the dice, which means that an
    attorney is barely any more likely to be able to predict
    outcomes than a stranger walking down the street (or posting to USENET)."

    not only is a series of patently idiotic statements, but is offensive and
    insulting and, moreover, was clearly intended as such since you know I'm a
    lawyer.

    If you believe what you wrote, then I'll stand by my statement that you know
    nothing of the law or lawyers. However, I don't think you believe it -- I
    think you were just being insulting.



    >
    > > You made a number of ridiculous statements and I called you on them.

    >
    > No need to provide an example in this post, but thanks anyway.
    >
    > --
    > Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
    PTRAVEL, Jun 13, 2004
    #17
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