Digital Images: Copyright Issues

Maria Ortlieb E-Publishing and Web Design

School of Information Studies – University of Wisconsin, Milwaukee

December 19, 2009

There are several challenges posed when determining if copyright law has been infringed

upon: Current copyright laws have many gray areas. If an image is used and altered, it is difficult to determine ‘what’

and ‘how much’ would need to be altered in order to not have infringed upon copyright law.

The subject of a photograph is not copyrightable (unless the subject itself is copyrightable).

An example of copyrightable original elements in a photograph include color patterns, angle, choice of lens, and perspective.

Distinguishing the differences between the ideas and expression of two works can be ambiguous.

Because determining substantial similarity between two works is not always cut and dry, cases often end up in the

courts where the following three step are required:

The plaintiff must prove that the defendant had access to the plaintiff’s work.

The material at issue must be copyrightable material. Copyright law protects only expression of ideas, not the ideas themselves. Thus the plaintiff must show that any material alleged to have been copied was an expression, not just an idea.

The plaintiff must prove that the expression of the defendant is substantially similar to the plaintiff’s expression, with the trier of fact acting as an ordinary observer. (Seecof 216)

If the court should find substantial similarity between two works, the defendant may invoke the ‘doctrine of fair use.’ The defendant would need to prove that his or her work fulfills a different function than the

original work. The court considers and weighs the following four factors independently (but generally gives more weight to the last):

The court decides if the use is a nonprofit/educational purpose or a commercial purpose.

The court must look at the nature of the work. For example, a textbook prepared for a school market could not properly be copied for school use.

The amount and substantiality of the portion copied is considered.

The effect of the defendant’s work on the plaintiff’s potential market must be evaluated. (Seecof 218-219)

Other challenges include determining who is the rightful owner of an image.

While some images have digital fingerprints, watermarks, and encryption to

mark the work of their creator, other images are less identifiable as they lack

attribution, titles, and other distinguishing characteristics. (Berinstein 38-39)

Possible Solutions:

One solution that has been proposed to protect the creator of an image is to create a national registry for the graphic arts industry -similar to how ASCAP and BMI are set up for composers.

Another solution that is an alternative to traditional copyright is the use of the Creative Commons – a nonprofit organization that sets forth its own license terms.

Creative Commons’ Four Primary Conditions:

Attribution – You let others copy, distribute, display, and perform your copyrighted work – and derivative works based upon it – but only if the users give credit the way you request.

Noncommercial – You let others copy, distribute, display, and perform your work – and derivative works based upon it – but for noncommercial purposes only.

No Derivative Works – You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike – You allow others to distribute derivative works only under a license identical to the license that governs your work. (Notess 41-42)

Resources to Find Shared Images:

www.gimp-savvy.com/PHOTO-ARCHIVE

www.flickr.com/creativecommons

www.digitalimagemagazine.com/blog/featured/25-free-stock-photo-sites/

Works CitedBerinstein, Paula.  "Images in your Future: The Missing Picture in an Online

Search.” Online Jan. & Feb. 1997: 38-46.

Notess, Greg R. "Finding Free Media." Online Jan. & Feb. 2009: 41-43.

Seecof, Benjamin R. "Scanning Into the Future of Copyrightable Images: Computer-Based Image Processing Poses a Present Threat." Copyright Law Symposium.Vol. 40. New York: Columbia UP, 1997. 201-39.