PetaPixel

Photos, Copyrights, and the “Mechanical Representation of Facts”

The debate over David LaChapelle copyright infringement lawsuit against Rhianna rages on — lawyer John William Nelson has written an article on why copyright should extend only to the literal copying of a photograph and not the elements within the photo:

A photograph is a mechanical representation of facts. This is unlike a painting, which is a non-mechanical representation of something—be it facts, such as an attempt to paint an outdoor scene or create a portrait of someone, or imagination in the form of how the artist sees the world, such as the Vincent van Gogh’s Starry Night painting. Paintings, therefore, are pure expressions of ideas or facts. Photographs, however, are mechanical expressions of facts.

[…] extending copyright protection beyond the mechanical copying of a photograph (i.e., scanning it and sending it to all your friends) is extending copyrights in photographs too far. The expression of a photograph cannot be separated from its factual reproduction of actual events. Attempting to do so leads to absurd results.

Therefore, a bright-line rule should reserve copyright protection in photographs only for the reproduction of those photographs. Copyright protection should not extend to the elements within the photographs themselves—doing so results in copyrighting facts, which is beyond the scope of copyright law.

It’s a pretty length piece, but well worth a read. What’s your opinion on this issue? Should the elements within a photograph be covered by copyright protection?

Photography Copyright, Rihanna, And Why We Need a Bright-line Rule (via Techdirt)


 
  • http://twitter.com/mauriciomatos Mauricio Matos

    This is BS. Photos like this one are not just facts. There are a lot of creativity involved and it should be protected.

  • http://twitter.com/mauriciomatos Mauricio Matos

    This is BS. Photos like this one are not just facts. There are a lot of creativity involved and it should be protected.

  • Rckpngn

    Well, Rhianna didn’t create this music video. So he should sue the director of it.

  • Christian Rudman

    This is the comment I posted on the article linked, but in case it gets dumped in moderation, I’ll present it here again:

    You do realize you left out an “r” in “Bight Line”?

    And comparing a tourist shot of the Statue of Liberty to a heavily
    constructed photographic scene is not apples to apples. A photographer’s
    rights do not just reside in the physical (or digital) image. How a
    photographer takes a photograph and processes it can be duplicated
    indefinitely by other photographers without stepping on any toes.

    However, when a photographer “makes” a photograph as LaChappelle has
    done in this series that is completely different. LaChapelle had created
    a look and style for the Italian Vogue in such a certain way there is
    no mistaking some random sadomasochism shot for one of his. It is not
    just the lighting, the costumes, or even the angles. His protectable
    images rights come from the mood and exacting look of these images.

    Rihanna’s director did not just happen to simulate his shots with some
    S&M costumes and a pink wall. She deliberately (and quite obviously)
    used his imagery as a blueprint for her video, but made no distinction
    between his work and hers. If she had adopted it to her own particular
    vision rather than photocopy and shoe-horn it into a bland reproduction,
    there would be no lawsuit.

    She made a mistake, she should have used her own creative marks in
    paying homage to LaChappelle, not just ripped him of without any credit.
    I do not agree with the suit being against Rihanna, I believe that
    Matsoukas should be the one on trial, but this is the way it will happen
    I suppose.

    After my argument, I must say that I completely understand your
    dissertation and do not think you are completely wrong in general terms
    of photographic copyright law. But, in this instance of the LaChappelle
    case, you are.

    Cheers.

  • Anonymous

    100% agree – tho i have no idea how one would enforce what you’re saying.  sadly i think it’s something that will have to be done on a case by case basis which means a lot of room for litigating something that could be obvious one way or another.

  • Anonymous

    Should the lighting setup be protected? The talent used? The set design? The white balance? The viewer response? 

    Down this road lays people buying photographer’s images and becoming the equivalent of patent trolls, suing artists for every work that has a similar shade of blue to some image in their portfolios. And the only people who make money is the lawyers.

  • Anonymous

    Should the lighting setup be protected? The talent used? The set design? The white balance? The viewer response? 

    Down this road lays people buying photographer’s images and becoming the equivalent of patent trolls, suing artists for every work that has a similar shade of blue to some image in their portfolios. And the only people who make money is the lawyers.

  • http://www.ptsuksuncannyworld.com ptsuk

    This is just a bunch of bs.  You CAN copyright a photo.  You can’t copyright how one is “made” as some of you like to say.  If I had all the exact same elements and I took the photograph then its something I created (albeit with no imagination and originality) but I took the photo, period.  The pop stars video has elements similar and not at all exact so its more of inspiration than anything else, and no you can’t copyright inspiration! get off your high “artsy fartsy, this is the only way i know to make money” arses and just go shoot some photos! Sheeesh!
    /rant.

  • http://www.ptsuksuncannyworld.com ptsuk

    This is just a bunch of bs.  You CAN copyright a photo.  You can’t copyright how one is “made” as some of you like to say.  If I had all the exact same elements and I took the photograph then its something I created (albeit with no imagination and originality) but I took the photo, period.  The pop stars video has elements similar and not at all exact so its more of inspiration than anything else, and no you can’t copyright inspiration! get off your high “artsy fartsy, this is the only way i know to make money” arses and just go shoot some photos! Sheeesh!
    /rant.

  • Anonymous

    Agree this it totally bs. People have always been inspired by others to make there own and this is not a copy, sure it’s similar in some way but still no copy.

    Think you can go the other way also if this would be wrong, the photographer is probably ‘stolen’ the idea from something else.

    -“Heading out to shoot the sky so I can sue anyone that have a sky in there photo.”

  • Anonymous

    Whoever took the first HDR photo of an old parked car would be making bank right now…

  • PepsiAddict

    Many photographers put a lot of effort in trying to master techniques and emulate styles perfected by many of the great photographers. Ansel Adams’ iconic photographs come to mind. Does this mean they are infringing on copyright? Perhaps they’re leaning how to be a better photographer or paying homage to a true photographic master? Would a person who photographs a stand of aspens in b&w using the zone system leave themselves open to a lawsuit for copyright infringement. I hazard a guess that most who have tried to photograph a grove of aspens have Adams’ work in the back of their head. Just a thought.

  • http://facebook.com/swiftmed Andrew MacDonald

    Here here. 

  • http://www.thefirst10000.com Thefirst10000

    So let’s see if I’ve got the gist of this right. It’s okay for Rihanna, or her director, to rip of LaChapelle as long as they’re not redistributing his photos as their own? So I can sample, say, 2:58 of a 3:00 Rihanna song, slow it from 130BPM to 100BPM, throw a Tuvan throat singer on it, and call it “original”? Interesting.

  • Dnguyen

    No