Copyright Infringement: The Risks We Face

Most of my visitors come looking for photoshop textures, templates for frames and calendars, tags, and stock photos, but I still see a fair number of visitors each month digging back into my blog posts, and while I know that the most popular articles here are those that deal with calendars and templates, today I’m going to step away from that for a short while to talk about copyright infringement.

For those who actually aren’t familiar with copyright law, you can lookup “copyright laws for ______” and fill in the blank with your own country. Most countries have similar copyright laws, but they aren’t exactly the same everywhere, so you need to be aware of the ones that apply to you.  As well, if you sell imagery online, you need to check with your stock site because in some cases, you may also need to comply with copyright laws in the country the stock sites works from. This is likely to also be the case if you use any advertising to monetize your site – be sure to check.

Copyright symbolOne thing I want to state up front: I am not anti-copyright, but neither am I so pro-copyright that I refuse to share any of my content. I also don’t believe that copyright laws should be used to file lawsuits that patently are not about copyright.

What I really wanted to bring up was the risks each photographer may face, if copyright lawsuits continue to become as silly as these two following ones. One of the sites I read every day is TechDirt – they produce articles on a wide range of subjects from tech – to internet – to copyright. A little while ago there was an article about a photographer (Janine Gordon) who had brought a lawsuit against another (Ryan McGinley) for having violated her copyrights. The images Ryan McGinley produced may have some minor similarities to hers, but (a) they are not HER images, they are his, and (b) one really cannot “copyright” ideas, or how a photo is framed. If that were the case there would be hundreds of thousands of images infringing on some very old photographs. In some cases in the images she claims as “infringing” the similarity is nothing more than what happens to be in the image (such as, a young couple kissing, or a young man jumping in the air with arms raised).

The court essentially told Ms. Gordon that there was “no substantial similarity” between her images, and Ryan McGinley’s images, and that her conception of copyright law has “no basis in statute, case law, or common sense”. She however, seems to think the judge doesn’t understand copyright. Which could be so since many Judges actually don’t, but in this case, I think the judge appears to be fairly well informed. These filings are usually public information, so you could look it up if you have an interest. (Another article on this from Artnet)

She’s appealing. Of course. Why not waste a little more money and time on it?  Well, Ms. Gordon isn’t the only one whose filed such cases. In the UK a suit was filed in which, incredibly,the court  has upheld the complainant’s case. Even more surprising is that the images (at least the two I’ve seen) are actually quite different - the framing is not at all similar, nor is the viewpoint from which the images were taken from. The only thing of similarity is the location, and the fact that both have the familiar double-decker bus and landmarks (like Big Ben), and they are both black and white while the bus is red. UK copyright laws are actually different than Canadian and US laws, but I find this case not only ridiculous, but a little concerning, and somewhat unnerving.

If the second image can be considered infringing on the first … then we photographer’s are all going to be lost in a web of copyright infringements. Let’s face it; how many “pretty young girl with dark hair against a white background” shots do we all make? These are all very similar, with the exceptions perhaps being the brand of clothing worn and the model used, but the style, layout, framing, background and editing could all be quite similar.

Take these older shots I have of some bmx bikers:

A series of 3 images with bmx bikers against a blue sky.

This is pretty standard stuff. If you are shooting stunt bikers, a lot of the time they’ll be up in the sky performing tricks. How many similar images to those three above have you seen? If I go looking (and I did) I can find all kinds of similar images – a bmx stunt rider against a blue sky wearing red and black. Seriously people … a couple were so eerily familiar that I went to check them out to make sure they weren’t mine. And they weren’t. The positions were pretty much the same, even some of the suits and boots were the same colour, but they simply weren’t my images.

Since they weren’t mine, they are aren’t infringing on my copyright. That seems plain to me, but I guess not to photographer’s who think you can copyright stuff like this. You can copyright YOUR OWN exact image, but you can’t copyright the concept of a stunt biker rider doing a stunt on a bike against a blue sky with white clouds. You just can’t.

There are situations where you are going to get similar images – a bike rally, a wedding, a model shoot in a studio, somebody jumping up in the air with their arms spread. What in heaven’s name makes that a copyright infringement? Um, nothing … not as far as I can tell.

True, I am no lawyer and I’m not really a copyright expert either, but I’ve had my head stuck in copyright law documentation for years on end making sense of it, even to the point of paying a lawyer to unravel some it. I have a reasonably good grasp of copyright law – US and Canada (no, not UK), though I suspect even the guys who wrote copyright law don’t understand it fully.

“Like that photo” just really isn’t copyright infringement.  I suppose what it really is (or could be) is lack of imagination but somehow, I don’t think that’s against the law. Besides, everybody whose been to a bike rally will have images like those ones I posted above. Everyone whose been to Paris will have similar pictures of the Arc de Triomphe or the Eiffel Tower, so where do we draw the line between infringing and coincidence?

Even if one actually sets out to purposely duplicate the circumstances, layout and framing in a photo (which is just really bad form for any professional) I still don’t see it as copyright infringement. Bad taste, sure I suppose it could be, but that’s about all. Artistic similarity is one thing, but copyright isn’t about “artistic similarity”.  In general, it would be really bad form to directly copy someone else’s work and most of us try hard not to do that on purpose, but creating a similar photograph based on it’s elements (background sky, dirt bikers) is not even doing that. Sometimes, the camera just catches what it catches.

barbed wire against a blue sky.

Whose going to sue who, er whom? See link below for photos just like that
Google Search: Barbed wire against blue sky

I am so tempted to take my grandson into the backyard and have him jump up in the air with arms spread … then insert a blue and why sky background using my green screen … just for the point of it.

Anyhow, sorry for ranting and not giving you any new templates, but for me this feels like a pretty important thing. If the appeals court reverses the judges decision, all of us could be up the creek without a paddle when it comes to copyright. Including Miss Gordon, because at least one of her photos appears to have drawn inspiration from a photograph by Arthur Fellig, c. 1938  (even if it didn’t, it’s probably similar enough to suit her own conditions of similarity).

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