digital editing, copyright, fair use?

Discussion in 'Digital Photography' started by Brandon J. Van Every, Feb 4, 2004.

  1. How much does one have to modify a digital photo before it's 'fair use' and
    no longer the property / province of the copyright holder? Two concrete
    examples:

    - an image of a Monet panting (a long dead artist, but someone has made the
    digital image)
    - a contemporary digital photographer's scene of a garden

    If I lift out a chunk of the image, and collage it into some other work, is
    that 'fair use' ? I'm assuming there are no Trademark issues, i.e. I'm not
    lifting something that has protected brand identity.

    What about more simplistic coloring / filtering / blurring / lightening /
    darkening / processiing of the image?

    --
    Cheers, www.indiegamedesign.com
    Brandon Van Every Seattle, WA

    20% of the world is real.
    80% is gobbledygook we make up inside our own heads.
    Brandon J. Van Every, Feb 4, 2004
    #1
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  2. Brandon J. Van Every

    Lionel Guest

    Kibo informs me that "Brandon J. Van Every"
    <> stated that:

    >How much does one have to modify a digital photo before it's 'fair use' and
    >no longer the property / province of the copyright holder? Two concrete
    >examples:
    >
    >- an image of a Monet panting (a long dead artist, but someone has made the
    >digital image)


    If it's a straight photograph of the painting, taken without permission,
    you're probably screwed. (Possibly modulo a PJ reporting on an art
    exhibition, depending on the circumstances.)

    >- a contemporary digital photographer's scene of a garden


    If you mean photographing someone else's garden, you're probably fine.
    If you mean lifting some other photographer's photo of a garden, it'd
    depend a lot on how much of it you used, & how easy it is to recognise
    the source image.

    >If I lift out a chunk of the image, and collage it into some other work, is
    >that 'fair use' ? I'm assuming there are no Trademark issues, i.e. I'm not
    >lifting something that has protected brand identity.


    >What about more simplistic coloring / filtering / blurring / lightening /
    >darkening / processiing of the image?


    Unfortunately, there's no short answer, & no clear "line in the sand",
    because it's all about the perception of the viewer. It's the kind of
    case that usually depends a lot on the skills of the lawyers involved, &
    costs everyone involved in such disputes a lot of money.
    IANAL, but my understanding is that if a 'significant' part of the final
    work recognisably consists of the older work, the entity owning
    copyright over the older work has enough of a case for the court to take
    them seriously. Of course, this doen't mean that they'll necessarily
    win.

    --
    W
    . | ,. w , "Some people are alive only because
    \|/ \|/ it is illegal to kill them." Perna condita delenda est
    ---^----^---------------------------------------------------------------
    Lionel, Feb 4, 2004
    #2
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  3. If any part of the original remains it is still copyrighted. What you
    are suggesting is not, I believe, covered under "fair use".

    --
    Joseph E. Meehan

    26 + 6 = 1 It's Irish Math


    "Brandon J. Van Every" <> wrote in
    message news:bvpcuu$uj20d$-berlin.de...
    > How much does one have to modify a digital photo before it's 'fair use'

    and
    > no longer the property / province of the copyright holder? Two concrete
    > examples:
    >
    > - an image of a Monet panting (a long dead artist, but someone has made

    the
    > digital image)
    > - a contemporary digital photographer's scene of a garden
    >
    > If I lift out a chunk of the image, and collage it into some other work,

    is
    > that 'fair use' ? I'm assuming there are no Trademark issues, i.e. I'm

    not
    > lifting something that has protected brand identity.
    >
    > What about more simplistic coloring / filtering / blurring / lightening /
    > darkening / processiing of the image?
    >
    > --
    > Cheers, www.indiegamedesign.com
    > Brandon Van Every Seattle, WA
    >
    > 20% of the world is real.
    > 80% is gobbledygook we make up inside our own heads.
    >
    Joseph Meehan, Feb 4, 2004
    #3
  4. Brandon J. Van Every

    Paolo Pizzi Guest

    Brandon J. Van Every wrote:

    > How much does one have to modify a digital photo before it's 'fair
    > use' and no longer the property / province of the copyright holder?


    It's NEVER fair use. "Fair use" is HOW you are using the photo
    (non-profit etc.) not how much it's knocked off from other people's
    work.

    > Two concrete examples:
    >
    > - an image of a Monet panting (a long dead artist, but someone
    > has made the digital image)


    Watch out, museums own all the reproduction rights of their stuff,
    even if it's renaissance paintings (theoretically in the public domain.)
    Easy example: you can't photograph and publish the Mona Lisa
    without the authorization of the Louvre. In the US it's slightly
    different because EVERYTHING published or displayed by the
    government is public domain. For example, feel free to "steal" and
    use all the pictures you want from US military sites, it's all fair game
    (but you are still required to give them credit for the photo. Claiming
    it as your own is actually a crime.) Yes, of course the same goes for
    the National Gallery in D.C. or any other federal or state museum.
    In Britain, the queen is the "legitimate owner" of all government
    copyrights, that's why the call it "Crown Copyright." Until a few
    years ago, the royal family was actually cashing in, but I believe
    the law was changed some 15-20 years ago and now the money
    goes to the goverment (i.e. the politicians are cashing in now...)

    > If I lift out a chunk of the image, and collage it into some other
    > work, is that 'fair use' ?


    Might be "admissible" by a judge, but it will never be "fair use."
    "Fair use" does not imply that copyrights no longer apply. It's
    fair use when you can prove that you are neither making a
    profit off the copyrighted work you are using nor economically
    damaging the legitimate copyright owner (as in posting a movie
    to Kazaa or similar sites: you are not making money but you are
    depriving the studios of a chunk of their profits. How much is
    usually for a judge to decide.)

    > I'm assuming there are no Trademark


    The US Copyright Law and the 1980 Berne International
    Convention on Copyrights (underwritten by all western countries,
    Japan, most of Asia except China etc.) have established that
    copyright protection is automatic and the artist needs to file no
    papers for his/her work to be protected. Even if there is no
    copyright ( © ) mark, it's still copyrighted. All the artist has to
    do is to show that he/she is the original creator.

    > issues, i.e. I'm not lifting something that has protected brand
    > identity.


    See above.

    > What about more simplistic coloring / filtering / blurring /
    > lightening / darkening / processiing of the image?


    No way. It would be way too easy to claim a Helmut Newton
    portrait as your own just because you added a couple of Photoshop
    filters...
    Paolo Pizzi, Feb 4, 2004
    #4
  5. "Brandon J. Van Every" <> writes:

    > How much does one have to modify a digital photo before it's 'fair use' and
    > no longer the property / province of the copyright holder? Two concrete
    > examples:
    >SNIP<


    See http://www.philipstripling.com/ilaw.html#copyr

    As others have pointed out, you are treading on slippery slopes.

    --
    Philip Stripling | email to the replyto address is presumed
    Legal Assistance on the Web | spam and read later. email to philip@
    http://www.PhilipStripling.com/ | my domain is read daily.
    Phil Stripling, Feb 4, 2004
    #5
  6. On Wed, 04 Feb 2004 01:12:19 GMT, "Paolo Pizzi"
    <> wrote:

    >Watch out, museums own all the reproduction rights of their stuff,
    >even if it's renaissance paintings (theoretically in the public domain.)
    >Easy example: you can't photograph and publish the Mona Lisa
    >without the authorization of the Louvre.


    At least in the U.S., the Mona Lisa would have passed into the public
    domain quite a while ago. OTOH, since Monet died in 1926, some of
    his work may be still be in copyright. Thanks to Disney, assume
    anything that's protected today will be protected forever.

    >In the US it's slightly
    >different because EVERYTHING published or displayed by the
    >government is public domain.


    Not exactly. By law, copyright protection is not available for any
    work of the United States government. The U.S. government can
    acquire copyrights in other works in various ways. You can also
    license a copyright or lend a piece of copyrighted material to the
    Federal government without losing any of your rights.

    Cite: http://www4.law.cornell.edu/uscode/17/105.html

    Note also that the limitations do not apply to state governments,
    only the federal government.

    >> If I lift out a chunk of the image, and collage it into some other
    >> work, is that 'fair use' ?


    Sigh, another month, another fair use question. The test for fair use
    is codified here:
    http://www4.law.cornell.edu/uscode/17/107.html

    Quoting from the Library of Congress site:
    The distinction between “fair use” and infringement may be
    unclear and not easily defined. There is no specific number
    of words, lines, or notes that may safely be taken without
    permission. Acknowledging the source of the copyrighted
    material does not substitute for obtaining permission.
    http://www.copyright.gov/fls/fl102.html

    --
    Michael Benveniste --
    Spam and UCE professionally evaluated for $250. Use this email
    address only to submit mail for evaluation.
    Michael Benveniste, Feb 4, 2004
    #6
  7. Brandon J. Van Every

    Ralph Sade Guest

    Copyright laws pertain only to the right to reproduce copyrighted
    properties. Producing derived properties is less clear under American law.
    For this reason, copyright holders often attempt to expand their rights by
    including restrictive language as a condition of sale of their copyrighted
    property. Such aggrandizement is of debatable legal standing.



    See http://www.copyright.gov/ for explanation of American copyright laws.



    Section 107, fair use includes: criticism, comment, news reporting,
    teaching, scholarship, and research.



    Note that artistic works are not included in fair use.



    It is important to understand that actual copyright infringement only occurs
    when a copyright holder is "harmed," that is loses money, by someone else's
    use of their copyrighted property. If use of copyrighted property does not
    actually cause harm then no legal infringement exists. However, copyright
    holders often threaten or imply lawsuit even when no harm has occurred. In
    such cases they usually offer a settlement out of court to avoid litigating
    a facetious claim.



    Copyright laws are often confused with trademark laws, which however are
    entirely different and often less lenient. See http://www.uspto.gov/ for
    American trademark laws.
    Ralph Sade, Feb 4, 2004
    #7
  8. Brandon J. Van Every

    Don Stauffer Guest

    The amount you change a piece of property is not the issue in 'fair
    use.' It is the usage itself and how you obtained original. If you
    bought an image, or, for instance, a book with the image, and you
    scanned and modified an image to use on your own wall for decoration,
    that would probably fall under fair use.

    If you scanned image from library book, and/or if you gave copies to
    friends, that probably wouldn't be. There is NO way you can sell or
    profit from your modified image.

    BTW, a judge or jury has the final say. The way a copyright is defended
    is to bring suit. That requires a decision by a judge or jury, and
    while lawyers for each side have a say as to their interpretations,
    ultimately it is judge or jury that decides.

    "Brandon J. Van Every" wrote:
    >
    > How much does one have to modify a digital photo before it's 'fair use' and
    > no longer the property / province of the copyright holder? Two concrete
    > examples:
    >
    > - an image of a Monet panting (a long dead artist, but someone has made the
    > digital image)
    > - a contemporary digital photographer's scene of a garden
    >
    > If I lift out a chunk of the image, and collage it into some other work, is
    > that 'fair use' ? I'm assuming there are no Trademark issues, i.e. I'm not
    > lifting something that has protected brand identity.
    >
    > What about more simplistic coloring / filtering / blurring / lightening /
    > darkening / processiing of the image?
    >
    > --
    > Cheers, www.indiegamedesign.com
    > Brandon Van Every Seattle, WA
    >
    > 20% of the world is real.
    > 80% is gobbledygook we make up inside our own heads.


    --
    Don Stauffer in Minnesota

    webpage- http://www.usfamily.net/web/stauffer
    Don Stauffer, Feb 4, 2004
    #8
  9. Brandon J. Van Every

    Tom Monego Guest

    You probably should be careful, but collage artists have been dealing with
    this for years. You probably should look into collage as opposed to
    reproducing photos. I was in a show once that an collage artist was using
    magazine images in the collages. He didn't see any problem as long as he
    didn't use complete images, still bugged the hell out of me. Doesn't the guy
    who makes Magic Photo Collages use found images, and then copyrites the
    technique.
    You are in an interesting place but be careful.

    Tom

    In article <>, says...
    >
    >Copyright laws pertain only to the right to reproduce copyrighted
    >properties. Producing derived properties is less clear under American law.
    >For this reason, copyright holders often attempt to expand their rights by
    >including restrictive language as a condition of sale of their copyrighted
    >property. Such aggrandizement is of debatable legal standing.
    >
    >
    >
    >See http://www.copyright.gov/ for explanation of American copyright laws.
    >
    >
    >
    >Section 107, fair use includes: criticism, comment, news reporting,
    >teaching, scholarship, and research.
    >
    >
    >
    >Note that artistic works are not included in fair use.
    >
    >
    >
    >It is important to understand that actual copyright infringement only occurs
    >when a copyright holder is "harmed," that is loses money, by someone else's
    >use of their copyrighted property. If use of copyrighted property does not
    >actually cause harm then no legal infringement exists. However, copyright
    >holders often threaten or imply lawsuit even when no harm has occurred. In
    >such cases they usually offer a settlement out of court to avoid litigating
    >a facetious claim.
    >
    >
    >
    >Copyright laws are often confused with trademark laws, which however are
    >entirely different and often less lenient. See http://www.uspto.gov/ for
    >American trademark laws.
    >
    >
    >
    >
    >
    >
    Tom Monego, Feb 4, 2004
    #9
  10. Brandon J. Van Every

    PTRAVEL Guest

    "Brandon J. Van Every" <> wrote in
    message news:bvpcuu$uj20d$-berlin.de...
    > How much does one have to modify a digital photo before it's 'fair use'

    and
    > no longer the property / province of the copyright holder?


    Modification has nothing to do with fair use doctrine. Fair use is an
    equitable doctrine that is a defense to copyright infringement. It is
    fact-specific and, in the US, includes consideration of four
    non-dispositive factors set forth in the Copyright Act. Without knowing
    what, exactly, you are doing, there's no way to determine whether something
    ultimately will be determined to be a fair use or not. Note, though, that
    the most important fair use factor is the economic effect on the market for
    the original.

    With respect to your collage example, as a general rule, it would constitute
    copyright infringement. Fair use might apply if the work constitutes
    parody. However, for it to do so, the work that you've copied would need to
    be the subject of the parody.

    As for your second question, copying of protected expression without
    permission is infringement. Period.

    > Two concrete
    > examples:
    >
    > - an image of a Monet panting (a long dead artist, but someone has made

    the
    > digital image)
    > - a contemporary digital photographer's scene of a garden
    >
    > If I lift out a chunk of the image, and collage it into some other work,

    is
    > that 'fair use' ? I'm assuming there are no Trademark issues, i.e. I'm

    not
    > lifting something that has protected brand identity.
    >
    > What about more simplistic coloring / filtering / blurring / lightening /
    > darkening / processiing of the image?
    >
    > --
    > Cheers, www.indiegamedesign.com
    > Brandon Van Every Seattle, WA
    >
    > 20% of the world is real.
    > 80% is gobbledygook we make up inside our own heads.
    >
    PTRAVEL, Feb 4, 2004
    #10
  11. Brandon J. Van Every

    PTRAVEL Guest

    "Paolo Pizzi" <> wrote in message
    news:TFXTb.19857$...
    > Brandon J. Van Every wrote:
    >
    > > How much does one have to modify a digital photo before it's 'fair
    > > use' and no longer the property / province of the copyright holder?

    >
    > It's NEVER fair use. "Fair use" is HOW you are using the photo
    > (non-profit etc.) not how much it's knocked off from other people's
    > work.
    >
    > > Two concrete examples:
    > >
    > > - an image of a Monet panting (a long dead artist, but someone
    > > has made the digital image)

    >
    > Watch out, museums own all the reproduction rights of their stuff,
    > even if it's renaissance paintings (theoretically in the public domain.)


    Sorry, but that's wrong. Once a copyright expires, anyone is free to make
    copies. Museums may condition access to their collection on acquiesence to
    a license precluding reproduction (though I've heard of very few that do).
    However, if I take a photograph of the Mona Lisa, I am free to do whatever I
    like with it, absent a contractual agreement, i.e. license, with the Louvre
    to the contrary.



    > Easy example: you can't photograph and publish the Mona Lisa
    > without the authorization of the Louvre. In the US it's slightly
    > different because EVERYTHING published or displayed by the
    > government is public domain.


    Sorry, but that's also wrong. As I recall, the U.S. government doesn't
    retain copyright in its publications. However, the fact that it displays
    something does not render it public domain.


    >For example, feel free to "steal" and
    > use all the pictures you want from US military sites, it's all fair game
    > (but you are still required to give them credit for the photo.


    Whoa. You're mixing up a lot of concepts here. A US military site isn't
    subject to copyright protection. Neither is a city street or the Grand
    Canyon. Copyright only resides in an original work of creative expression.


    > Claiming
    > it as your own is actually a crime.)


    No, it's not. You own the copyright in any creative work fixed in a
    tangible medium. Period.

    >Yes, of course the same goes for
    > the National Gallery in D.C. or any other federal or state museum.


    No, it doesn't.


    > In Britain, the queen is the "legitimate owner" of all government
    > copyrights, that's why the call it "Crown Copyright."


    I can't speak for Britain. Your discussion of US copyright is simply
    incorrect.

    >Until a few
    > years ago, the royal family was actually cashing in, but I believe
    > the law was changed some 15-20 years ago and now the money
    > goes to the goverment (i.e. the politicians are cashing in now...)
    >
    > > If I lift out a chunk of the image, and collage it into some other
    > > work, is that 'fair use' ?

    >
    > Might be "admissible" by a judge, but it will never be "fair use."


    Admissibility has nothing to do with whether something constitutes fair use.


    > "Fair use" does not imply that copyrights no longer apply. It's
    > fair use when you can prove that you are neither making a
    > profit off the copyrighted work you are using nor economically
    > damaging the legitimate copyright owner


    No it's not. Fair use is an equitable doctrine, meaning it depends on
    judicially-determined concepts of fundamental fairness. Four factors are
    listed in the US Copyright Act, but they are neither exclusive nor
    dispositive.


    >(as in posting a movie
    > to Kazaa or similar sites: you are not making money but you are
    > depriving the studios of a chunk of their profits. How much is
    > usually for a judge to decide.)
    >
    > > I'm assuming there are no Trademark

    >
    > The US Copyright Law and the 1980 Berne International
    > Convention on Copyrights (underwritten by all western countries,
    > Japan, most of Asia except China etc.) have established that
    > copyright protection is automatic and the artist needs to file no
    > papers for his/her work to be protected. Even if there is no
    > copyright ( © ) mark, it's still copyrighted. All the artist has to
    > do is to show that he/she is the original creator.


    Correct, though the term of art is "author."

    >
    > > issues, i.e. I'm not lifting something that has protected brand
    > > identity.

    >
    > See above.
    >
    > > What about more simplistic coloring / filtering / blurring /
    > > lightening / darkening / processiing of the image?

    >
    > No way. It would be way too easy to claim a Helmut Newton
    > portrait as your own just because you added a couple of Photoshop
    > filters...
    >
    >
    PTRAVEL, Feb 4, 2004
    #11
  12. Brandon J. Van Every

    bob Guest

    "Brandon J. Van Every" <> wrote
    in news:bvpcuu$uj20d$-berlin.de:

    > How much does one have to modify a digital photo before it's 'fair
    > use' and no longer the property / province of the copyright holder?
    > Two concrete examples:
    >


    If I understand where you are coming from, the answer in the USA is that it
    is probably never "fair use." The creator of the work is the only person
    with the authority to create copies of it. You are not permitted to make
    derivitive works without permission -- Before you could lighten/ blur, etc
    the work, you would need to make a copy.

    A good resource on fair use is http://fairuse.stanford.edu/

    It doesn't matter if a painting is public domain or not, my photograph of
    it is just as copyright as any other original photograph I make. Now
    suppose we're talking about a 400 year old painting in the National
    Gallery. I could take a photo of it. You could take a photo from the same
    vantage point, under the same lighting conditions, with the same lens. If
    we compare your original file to my original file, there will probably be
    some small differences. If you moderately modify my file, I would probalby
    not be able to prove that your end result was a derivitive of my file, as
    opposed to one you could have made yourself. It's still infringement.

    I think the collage issue is a red herring. In the case of traditional
    collage, the artist obtains legally created copies to work with. In the
    USA, the artist does not have a right to prevent mutilation of work, as he
    does in Europe. Not yet anyway.

    Bob
    bob, Feb 4, 2004
    #12
  13. Brandon J. Van Every

    PTRAVEL Guest

    "Ralph Sade" <> wrote in message
    news:p...
    > Copyright laws pertain only to the right to reproduce copyrighted
    > properties. Producing derived properties is less clear under American

    law.

    Sigh. Where do people get this stuff?

    Copyright law applies to the specific rights reserved thereunder, which
    include:

    1. The reproduction right (the right to make copies).
    2. The distribution right.
    3. The right to prepare derivative works.
    4. The right to publicly perform and/or display in public.


    > For this reason, copyright holders often attempt to expand their rights by
    > including restrictive language as a condition of sale of their copyrighted
    > property. Such aggrandizement is of debatable legal standing.


    If you're talking about licenses, there's nothing "debatable" about them --
    licenses, as a general proposition, are enforceable provided the
    requirements for contract are present.


    >
    >
    >
    > See http://www.copyright.gov/ for explanation of American copyright laws.
    >
    >
    >
    > Section 107, fair use includes: criticism, comment, news reporting,
    > teaching, scholarship, and research.
    >
    >
    >
    > Note that artistic works are not included in fair use.
    >
    >
    >
    > It is important to understand that actual copyright infringement only

    occurs
    > when a copyright holder is "harmed,"


    Completely wrong. Copyright infringement occurs when protected expression
    is copied without permission. There is no harm requriement whatsoever.

    > that is loses money, by someone else's
    > use of their copyrighted property. If use of copyrighted property does

    not
    > actually cause harm then no legal infringement exists.


    Completely, thoroughly and totally wrong.

    > However, copyright
    > holders often threaten or imply lawsuit even when no harm has occurred.

    In
    > such cases they usually offer a settlement out of court to avoid

    litigating
    > a facetious claim.


    Clearly, you have no understanding of either copyright law or its
    enforcement. Best leave it's explanation to the pros -- you'll only get
    yourself in trouble.

    >
    >
    >
    > Copyright laws are often confused with trademark laws, which however are
    > entirely different and often less lenient.


    Yes, they're different. No, trademark law is not "less lenient."

    > See http://www.uspto.gov/ for
    > American trademark laws.
    >
    >
    >
    >
    >
    >
    PTRAVEL, Feb 4, 2004
    #13
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