The photo website, Petapixel, recently ran an article on a photo that was allegedly copied by a pharmaceutical company in Germany. The usual cesspool of bad information and tribal wisdom was sprinkled in the comments section.
Petapixel to their credit ran a follow up piece, written by a lawyer. A lawyer in Memphis, whose trial experience in photo copyright matters is unknown to us. Similarly we don’t know if he has ever litigated a copyright infringement case involving unauthorized derivative works. He opines that after reading the first story that no infringement has occured. The basis for his conclusion remains a mystery.
In light of our recent articles about hiring lawyers, we can now say some of the same criteria can be applied when reading articles online by lawyers. Not all lawyers know copyright law as a result of actually practicing it. Just like an excellent auto mechanic may not understand aerodynamics in an airplane and an airline mechanic may not know how to get your jalopy running. And a conductor could be one at Carnegie Hall or on the Long Island Railroad line.
Below is Jack’s reply in Petapixel’s comments that explains a lot, and at this writing is being held up by Petapixel moderators for approval. It is written entirely by Jack.
Remember that no lawyer’s opinion carries the weight of a decision rendered by a judge or jury after trial. Competent lawyers can and do disagree with each other daily.
I really hate wading into some of these discussions online, for several reasons, but articles like this do such an injustice in our photo community. I have to jump in and comment. It makes photographers shy away from pursuing an infringement case that they have a better than good chance of winning. This further enables and encourages infringers to continue infringing. Lawyers for infringers know that few photographers actually pursue or know how to pursue infringers. Getting information online, as this article sadly points out, can prove to be a source of false fact, wrong information and a forum for perpetuating myths about the law and its practice.
As I said in the other thread regarding these two photos, there are so many “protectable elements” duplicated between these two that the attorney for the “original author” would illustrate them to the court with great specificity. The judge would look at each similarity in determining whether “photo #2” was a rip off/infringement/unauthorized derivative,
I am of the opinion that the photographer could very well prevail in an infringement case. I’m not going to repeat all the elements again, but anyone can look at my comments in the other thread. I suggest to those that need more clarification, to look for my book, The Copyright Zone, written with lawyer Ed Greenberg, who has litigated thousands (that’s thousands) of copyright cases over a 35+ year career. We discuss derivatives in detail.
I am too experienced as an expert witness, faculty member at SVA and lecturer in this area to agree with Mr Remsen’s opinion, which is completely unsupported by case law, actual experience or references to sections of the Copyright Law itself. Not the first time I’ve run across a lawyer who might not really know this part of copyright law, as it pertains to photographs. I don’t know many lawyers that would make a statement such as “…it’s almost certainly not a violation of copyright.” Few lawyers would use the term “almost certainly” in any of these cases. Putting this out as an “almost certainty” based on a single, short blog piece is, well, just plain bad and harmful, in my opinion.
I would very much like to hear his support for his conclusion. He offers an opinion with no real backup to his opinion. And so I have to ask if Mr. Remsen has litigated any IP or copyright cases like this one in court?
From my non-lawyer position, I have been an expert witness in Federal Court for copyright, written books, have lectured extensively, teach to graduate students, and more. While it’s not always good to listen to non-lawyers, and as a non-lawyer, I state my background to show I’m not just spouting an unsupported opinion. A good IP lawyer without question knows more than I can ever hope to know about the law, but that’s not all lawyers. I’ve seen and run across too many, unfortunately, who read the laws but have no practical or litigation experience. I’ve also run across very good, and very expensive IP lawyers, who specialize in copyright, but not with photographs. There are experts themselves in different areas, like movies or music, but they are not experts regarding photographs. Again, I am not a lawyer, but I am an expert in copyright regarding this industry and regarding photographs.
A couple of points that jump out- The Mona Lisa is a terrible comparison, in that it’s in public domain, anyone can create any derivative of it, as you can with any public domain painting or photo (with some specific exemptions. Absolutes are difficult when discussing the law). There are many court cases and many settled cases on derivative issues, based with photographs, not music, other arts, or public domain images. Some case benefit the photographer, and sometimes photographers lose. These cases are rarely black and white. But with the photos in this article, I’d very much like to be the photographer who brings such a case to court. Even without a timely registration, because the usage would have such high actual damages, it’s a heck of a case here in the US. (Look up Leonard v Stemtech for such a case resulting in a $1.6 million dollar judgment). If the images are registered timely, then look out, the damages can get quite high. Even in Germany, since they have stricter laws protecting artists, it’s still potentially a great case which requires analysis of viability by a German attorney. That’s my non-lawyer opinion. Based on cases with which I have personal experience.
Mr. Remsen should be able to at least quote some cases in his article that are closer to the facts in this case. Like Fournier v. Erickson,c (S.D.N.Y. 2002), that was about to go to a jury, when the ad agency settled with the plaintiff. That’s a very common occurrence when a judge rules there is enough similarity to proceed. And the defendant knows that they’re defending a weak case because they did do an outright copy.
I also suggest to everyone to also read the blog I write with Mr Greenberg, who is an attorney who handles these type cases daily, at Thecopyrightzone.com, and search for several articles on hiring lawyers and the questions to ask. I think you’ll also find an article titled Head Fakes to be enlightening. Both in our book, on the official Copyright Office site, The Plus Glossary and countless other legal sites, the term “derivative” is defined and the methods by which they are judged by juries are laid out for you the viewer to read for yourself.
After such a long response, I’m afraid I probably will not respond to most replies here, unless it’s from Mr. Remsen explaining how he reached his conclusion. Like I said, I don’t like getting into what becomes another adventure of going down rabbit holes filled with factoids and myths posted by non- lawyers. I cringe the same way when some amateur photographers give a professional photographer “advice” on how to shoot.