
UK Court Says You Can Copyright The Basic Idea Of A Photograph - llambda
http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml?utm_source=dlvr.it&utm_medium=twitter
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michaelfeathers
In the old days, before the internet changed everything, there was an unstated
assumption that people could pretty much do whatever they liked with
copyrighted work unless they were making money off of it. I remember those
days. People would trade mix tapes and no one really cared even though it was
probably technically illegal.

Eventually, large rights holders started pushing toward the idea that copying
or unauthorized performance was actually a significant revenue loss, and that
pushed the RIAA and MPAA into our homes (so to speak).

I think that what we need is a reversion to a strong distinction between
copying/remixing for money or just for personal use or sharing. Nothing
highlights that necessity quite like this case. On it's surface, it is about a
calendar that was for sale, but the import is terrifying: someone can assert
ownership of particular poses of people in family photographs, market their
own photos and sue anyone who uses that pose in a private photo and shares it
online.

This monstrosity is precisely because there is no distinction between for-
money and not for-money uses. It's eroding completely and it's a serious
problem.

~~~
alexqgb
For money / no money isn't such a great distinction either. After all, the
Minute Maid corporation and a kid's 25 cent lemonade stand are both "for
money".

However, there's a bright and shining line between corporate entities, and
actual humans. Assuming that even low-level commerce is not something that we
want policed, it seems like setting up a new line at the point where a
business is worth incorporating.

Put simply, you have to be incorporated before copyright penalties apply.
Critically, you don't have to be incorporated to go after an infringing
corporation.

This doesn't really solve the business model problems of legacy rights
holders, but it does provide a clear basis for moving forward, not just with
new models, but with law that doesn't harm people's daily lives.

~~~
michaelfeathers
Sounds like a good idea, but I remember someone telling me that there is some
legal principle around transferring ownership of property and the distinction
between private companies and public corporations; that it's bad when the same
rights don't attach. This was around the time that Joel Bakan's book came out.

Definitely an idea worth looking into, though.

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chc
The same story from a different source was posted two days ago:
<http://news.ycombinator.com/item?id=3508615>. As was pointed out in the
comments then, this ruling is nowhere near as broad or unreasonable as any of
the knee-jerk articles make it sound. Essentially, the judge found it to be
infringing because the evidence showed that the people who commissioned the
photo were _trying_ to make a counterfeit version of the original.

~~~
Lagged2Death
_Essentially, the judge found it to be infringing because the evidence showed
that the people who commissioned the photo were trying to make a counterfeit
version of the original._

I.e., the defendant's crime was embodied entirely in the defendant's state of
mind rather than in the defendant's actions or in the work the defendant
produced.

The ruling[1] is actually quite explicit that the pictures in question are
obviously dissimilar (10), and the ruling is also explicit that brand
confusion was not the issue (71).

I think the ruling is absolutely as broad and as unreasonable as the most
hysterical headlines make out. For once.

[1] <http://www.bailii.org/ew/cases/EWPCC/2012/1.html>

~~~
clarkevans
While it might be broad, I'm not sure if it is unreasonable. In paragraph 37
the judge quotes case law and emphasizes: "defendants deny infringement but
they do not advance a case of independent design".

In paragraph 67 he explains this further: the defendant "could have simply
instructed an independent photographer to go to Westminster and take a picture
which includes at least a London bus, Big Ben and the Houses of Parliament".

I think that if this work was done as a "clean room" effort where the
requirements were specified and the designer wasn't shown the template to
replicate, the output would have likely differed in many other ways and the
court case would have swung the other way or avoided completely.

~~~
Natsu
> "defendants deny infringement but they do not advance a case of independent
> design".

Which is funny, because after the people pulled up a bunch of _other_ photos
that were pretty similar, the plaintiff said they'd never seen them before and
the judge simply took them at their word. While he didn't consider item 71 for
some reason, it's probably the main thing that undercut any way for them to
claim theirs was original.

Apparently, if nobody knew where they got the idea from, it would've been
okay?

