Copyright: Be Aware of its Limitations

Photographers, and indeed all artists and creative people, have rights to the protection of their work in terms of international copyright laws. No matter how much you may claim your right to a copyright or however well notified the public is of your rights, this does not mean all you believe is protected by copyright is actually protected.  There is vast opinion on the subject of what splits an idea or concept from a protectable, fixed and tangible medium of expression, the idea–expression dichotomy.

It is generally accepted that photographic images are automatically protected by copyright.  Thus no third party may infringe this copyright by copying the image, or publishing your art work.  The image is sacrosanct in that respect.  Unless permission is granted by the author, the image may not be copied in its exact form, verbatim, or altered; or published for gain or otherwise.  It would be a gross plagiarism to copy another’s photograph and represent it as your own.

Take a hypothetical case in point.  A photographer snaps an image of a model standing under the Eiffel Tower at an aesthetically pleasing, perhaps unique angel, or, maybe, a bunch of grapes next to a wine glass with a cork-screw arranged in a clever or peculiar way.  Both images would be copyright protected.  Another photographer comes along and takes almost the identical images but with subtle differences.  Both sets of images are similar, the ideas or concepts are the same, but the expression, or the images themselves, are unique to the photographer that took them.  The idea behind the creative expression could have been co-incidental or otherwise.

A section of the United Kingdom act on copyright is actually quite specific as to the rights to an abstract idea or a concept.  It states, inter alia,

“in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work…”

It is evident that copyright law is excogitated to protect the manifestation of concepts or protectable expression rather than the fundamental ideas themselves. Copyright, thus, does not protect ideas, only their material expression and in law the idea-expression divide is a legal doctrine which limits the scope of copyright protection.  Ideas, of course may be patented, thus conferring proprietary rights in relation to general ideas and concepts per se, but very few photographers would have either the time or the funding to patent the ideas behind their images.

In the United States there is a school of thought referred to as the merger doctrine.  The principle here is that if the idea or concept underlying the work can only be expressed in one single way, or they are so tied together, then the work’s idea and expression thereof merge.  This is being utilized frequently in the courts and its application fails even to save apparently protected expression from infringement.

Likewise, with the related doctrine of scenes a faire (a term that refers to characters or places that are standard to some general theme or topic), the courts will not protect a copyrighted work from infringement if the expression embodied in the work originates from a commonplace idea.  Where there is no other way of photographing a concept, the courts prevent the monopolisation of that idea through the application of the doctrine, and thus scenes a faire is not capable of being protected by copyright.

Returning to our hypothetical examples, it is considered that where claims might be made by the first photographer for infringement of copyright, then the court would probably go on to find firstly that the infringement was to the unprotected idea and not the expression.  Given that the later photographs were not virtually identical, being differences in light and shadows, colours and angles one might expect the merger or scenes a faire doctrines may be applied and the more previous photographs would not be held to be infringements.

These principles, probably the most basic of copyright law, originating from common law, have beaten their often repeated paths through diverse Supreme Courts around the globe over the years and the idea–expression doctrine remains the same that ideas and concepts go into the public domain while the specific expression of the author is protected and remains under his or her control.  Photographers, and indeed artists and writers, should understand these concepts before venturing claims for their abstract ideas rather than their truly protectable expressions.
Sources: – various
The Idea-Expression Dichotomy in Copyright Law – Edward Samuels – 56 Tenn. L. Rev. 321 (1989)

Plagiarism: Curse of the Photographer in Social Media

If you struggle reading white on black…go here…

There is a lot of photo plagiarism going on in social media forums. Photographers really need to understand the risks and, perhaps, if they display their work, accept that this is the nouveau way. Or should they? People will steal your work and use it to bask in a new found glory; a showing off of a supposedly new talent, which they never really had. They might even making money from your work. They follow in the footstep of the music pirates… everyone seems to be doing it, so maybe it must be right. It is not! Simply put, it is the theft or filching of one’s intellectual property, and most often an infringement of the author’s copyright.

According to the plagiarism dot org web site the Merriam-Webster Online Dictionary the term “plagiarize” means:

to steal and pass off (the ideas or words of another) as one’s own; to use (another’s production) without crediting the source; to commit literary theft; to present as new and original an idea or product derived from an existing source.

While perhaps flattering to the photographer, only in a way, just too many people seem to be content to share or purloin the work of others. They often do so in their own name, by simply failing to credit original authors. They are part of an unfortunate sect who, clearly, are unable create their own content and who can only fail to bring new and original material to the social media platforms. They would if they could, but social media almost dictates that these poor people must post something to at least become acknowledged or ‘expert’ and, hence, well known, if not popular. They are doing this on the backs of credible authors and originators. Social media never intended that this be done on the wicked altar of plagiarism and theft.

Photography is never the simple click of a shutter button… there is so much more to it. Your average photographers will have invested heavily in learning their craft and in acquiring their equipment. They will have expended time and money to get on location for the shoot, and then taken frame after frame until they get it right. A good photographer will admit to a ratio of one brilliant image in possibly a thousand… hitting the photographic sweet spot just once in as many minutes, if not hours of dedicated photography.

Yet some hapless soles, devoid of creativity and capacity to originate, will spend just seconds copying your work and passing it on as their own. Some will destroy a perfectly good image with crudely styled motivational messages, often plagiarized too, and then offer the work as their own, shamelessly oblivious of their destructive prowess. No reference is made to the original author, the source of the material stolen, nor any consideration given to copyright. Some go so far as to rub out obvious copyright notices.

Digital photography has led to an explosion of graphic material on the internet. This is healthy. It allows the photographer to share his or her work and the viewer or beholder to marvel, enjoy and make recollections which are pleasing to the heart. Most photographers see the power of the internet to allow exposure of their work, and often this leads to commercial considerations. This is all very honorable, until somebody decides to claim the image as his or her own for gratuitous purposes or profit.

Photographers understand the ethics when handling the work of others. It is simple. Credit the original artist if you can, and almost certainly credit the source of the material. To not do so infers you are passing the work on as your own, that is, stealing. There is just too much ignorance being demonstrated by offenders. Almost without exception stealing is a crime across the globe and ignorance is no defense. Surely, it is time the social media networks came to understand this and take action against offenders who pursue this filthy crime. The are all providing the platform. Plagiarists should also learn to understand.

You can help… there is a petition to be signed and you could join a social media group in support of this campaign.

You Don’t Have To Be A Brain Scientist To Steal

You do not have to be a brain scientist to steal, which probably explains why there is so much theft going on.  Particularly prominent in this silent and stealthy larceny is the thievery of digital creative works, be these movies, your written works, software, music or simply just images.  Digital technology has made crime just so much easier.  Those who make the effort, outlaying their time and money, to create and produce, will inevitably find themselves the victims of digital piracy.  Crime is as simple as a left click and a copy command with a mouse!

Creative works are produced for both reward and pleasure, or both.  Some people are dependent solely upon their creative works to earn a crust, and others simply enjoy that someone, somewhere, might derive pleasure from their work.  Yet, the ease with which others may pillage and plagiarise makes originators so very sceptical about sharing their creative thinking in cyberspace.  Sharing does not imply, nor give, a right to others to copy creative work.  To copy is to steal.

Copyright will always be owned by the creator until such time that the artist or author signs that right away.  It need not be claimed in or on original works, but no harm is done to do so. It simply reminds others of their obligation not to steal. Copyright should protect the creative worker from the marauding copycats and pirates who make their filthy lucre; but this lowlife is thriving, pirating digital material on the backs of creators.  Clearly, the thin veil of copyright protection is less effective than we may fancy.

Social media has provided a huge platform for sharing the work of others.  It establishes an enormously grey area right on the boundaries of plagiarism and theft.  All too often one sees creative works, clearly not those of the sharer, being passed on from one network to another.  It is an explosion of exposure!  In fact, social media has created a platform for activity bordering on pillage and plagiarism with the ‘Share’ button.  This may well be the price of presenting your works on the social media platform… people are expected to share your creative works for nothing but exposure in return.

Now herein lies the big anomaly. And it will get worse as the social media platforms expand in both numbers and size.  People just cannot help but share your creative work, if it is good, and artists and authors may not share the benefits of such exposure.  If anything, they will suffer, simply because there is a thin line between sharing and copyright infringement.  Sharing seems to imply your work is a creative common.  Who is going to spend money on your work, when they can bask in the glory of a free share?  Social networking enthusiasts need to be ever conscious of giving, and honouring, credit where it is due to original authors and artists.