Photographers’ images usually are infringed by others copying the image, either in whole or in part. But photographs also may be infringed when others copy the expression of the photograph.
Ray Dowd over at the Copyright Litigation Blog recently reported on a prime example of whether a stained glass window infringed a photograph. The court in that case said “no!” William Patry gives the crux of the decision why. In sum, the court looked at elements protected by copyright law and substantial similarity. Peter Friedman explains how this law will be applied to the Obama Hope poster case.
Derivative Works as Compared to Copying
The exclusive right to make an adaptation of one’s own copyrighted work is one of the exclusive rights given to authors by Congress. An adaptation of a work is commonly referred to as a derivative work. According to section 101 of the Copyright Act, a derivative work is:
a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, ﬁctionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modiﬁcations, which, as a whole, represent an original work of authorship, is a “derivative work.”
17 U.S.C. § 101. Because the right to prepare derivative works is the copyright holder’s exclusive right, they may only be created with permission of the author. The difference between a derivative work and a copy is that a derivative work includes some additional artistic creativity above and beyond the original work.
A work may be found to be derivative even if it has a different total concept and feel from the original copyrighted work. Mulcahy v. Cheetah Learning LLC, 386 F.3d 849 (8th Cir. 2004). In fact, to be copyrightable, a derivative work must be significantly different from the copyrighted original. Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004). This is so for two reasons: to avoid the confusion that would be created if two indistinguishable works were copyrighted, and to prevent a copyright owner from extending his or her copyright beyond the statutory period by making an identical work as the statutory period was nearing its end, calling it a derivative work, and copyrighting it. This concept applies as well to the idea that a work will not be considered original simply because its creator worked hard so as to copy it. Feist Publications, 499 U.S. at 364, 111 S.Ct. at 1297. One who has slavishly or mechanically copied from others may not claim to be an author, as copies can never gain individual copyright protection. Id. Only the true author will be protected, and only for his own creative work.
To establish a claim of copyright infringement, courts require that a plaintiff prove, first, that he owns a valid copyright in a work and, second, that the defendant copied original elements of that work. Id. at 340, 111 S.Ct. at 1296. The plaintiff can prove copying either directly or indirectly, by establishing that the defendant had access, and produced something “substantially similar,” to the copyrighted work. Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982). Access to copyrighted material, as element of copyright infringement, simply requires proof of a “reasonable opportunity to view” the work in question. Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1249 (11th Cir. 1999).
Substantial similarity “exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. Substantial similarity, the general standard for copyright infringement, occupies a non-quantifiable value on the legal spectrum between no similarity and identicalness. Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516 n. 19 (11th Cir. 1997). See also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03(A) (2006). While the works need not be identical to find for infringement, there must be sufficient congruence between the original elements of the copyrighted work and the copied work such that a reasonable jury could find infringement. BUC Intern. Corp. v. International Yacht Council Ltd., No. 04-13653, 2007 WL 1774643, at *11 (Fla. Ct. App. June 21, 2007).
As with fair use, whether another work is substantially similar to your photograph, and therefore is an infringement, is a judgment call. That’s what makes lawsuits. But hopefully you’ll never have to find out what that means.