More Than One (Tunnel) View
You’re in beautiful Yosemite National Park. On your way to the Mariposa Groves, you pull into a parking lot next to a tunnel. You look to your right and see the splendor of Yosemite Valley, including Bridal Veil Falls, Half Dome and El Capitan. Of course, you want to take a picture of it.
But wait. Look closely at your feet and you’ll see the 1000s of tripod leg indentations. It’s been done before, and done well by none other than Ansel Adams. So when you take a photo of the same “Tunnel View,” is that copyright infringement?
Copyright law protects original expressions, not ideas. So when Mr. Adams had the idea to photograph Tunnel View, he owned the copyright to the expression of that idea only. That is, his copyright covers the photograph, not the subject matter. So it’s ok to photograph Tunnel View, right? Well, there’s more.
It’s clear to most everyone that you can’t photocopy Mr. Adams’ photograph. But did you know that his copyright extends a bit more than just to the exact image? Copyright law also protects his expression of the subject as contained in his elements of composition, such as the selection of lighting, shading, camera angle, background and perspective.
The parking lot at Tunnel View is small, and gives few options to capture that scene. So if you take a shot of the same scene including some of the same elements of Mr. Adams’ composition, does that constitute infringement? It would only if you produced something “substantially similar” to his work. In other words, would the average lay observer recognize the alleged copy as having been taken from the copyrighted work?
So you lay a copy of Adam’s “Tunnel View” photograph next to your camera, and set everything you possible can to shoot precisely the same image as his. You announce that you are attempting make an exact copy of his photograph. Are you infringing his image yet? That depends. Again, would an ordinary person find that you were successful in copying his image to a meaningful degree? Probably not. At a minimum, the trees in the area are different; the weather changes by the moment; and Mr. Adams had a skill that is not easily replicated.
This test is made easier by copyright law. Objects in the public domain or as they occur in nature are not protected by copyright. So shoot away at all of the icons in nature — you’re not in danger on infringing on anyone’s copyrights. But when it comes to other objects, check these tests to ensure that you’re respecting the copyrights of others.
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