Monday, July 25, 2005

Photography and Copyright Continued

On July 21, 2005, Judge Lewis Kaplan of the SDNY issued an opinion (only available over the weekend) in Mannion v. Coors Brewing Co., 2005 U.S. Dist. LEXIS 14686. Judge Kaplan is a scholarly, brilliant jurist whose opinions always contain a lot of learning, in this case about photography. Mannion is a worthy round two for yesterday's discussion.

In Mannion, a freelance photograph took photos of basketball star Kevin Garnett for SLAM magazine, which published them in conjunction with an article in the December 1999 issue. In December 2001, an ad agency for Coors beer used a manipulated version of one of Manning's photo for a "comp board" on which a picture of a can of Coors was superimposed along with the slang phrase "Iced Out." Permission was obtained for this internal use only. The rest of the story could be filled in by anyone: an ad is later generated and used without permission as a billboard that is alleged to capture the look and feel of Mannion's photo.

Validity of the copyright and access were undisputed, the only issue being substantial similarity. The court denied most of defendant's motion for summary judgment in a lengthy discussion of the protectible elements in photographs and their infringement.

On the question of originality, one distinction Judge Kaplan made (and that was noted in comments on the first posting), was between "decisions that a photographer makes in creating a photograph and the originality of the final product." Judge Kaplan recited language from prior decisions about choice of film, camera, and the like, but found that "the fact that a photographer made such choices does not alone make the image original. ... Protection derives from the features of the work itself, not the effort that goes into it." Interestingly, in further delving into the scope of originality (in order to determine how far plaintiff's copyright reached), Judge Kaplan relied on an English copyright treatise, Sir Hugh Laddie's "The Modern Law of Copyright and Designs" (2000).

Judge Kaplan also reviewed a question not touched on last week, rights over the subject of the photo, questioning the oft-cited principle that copyright confers no right over the subject of the photo, and refining the principle so that "to the extent the photograph is original in the creation of the subject, copyright extends also to the subject. Thus, an artist who arranges and then photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium." Obviously, the idea/expression dichotomy has a large role to play in all this, and there is a very extensive discussion of that principle, in which Judge Kaplan joined those who have come to reject Nimmer's meaningless "abstractions test."

This was all prelude to the infringement analysis, an analysis which includes a helpful discussion of the total-concept-and-feel versus more discerning observer approaches, although not choosing one since he denied defendant's motion, sending the case to a jury.

9 comments:

Fred von Lohmann said...

I will admit, copyright in photographs has always left me a bit mystified. If mere effort alone is not protected, let me pose a hypothetical: experts make an extremely precise digital scan of a public domain painting or tapestry, using extremely sophisticated methods. The goal is to make the most faithful digital duplicate possible.

Query #1: any copyright in the resulting digital file?

Query #2: if someone were to print a copy from the file, then photograph or scan the resulting print out, any infringement?

Anonymous said...

Fred--
Wouldn't that just be slavish copying, which lacks originality?

William Patry said...

Fred and Anonymous:

Judge Kaplan had that exact case in Bridgman Art Library, Ltd. v. Corel Corp., 36 F. Supp.2d 191 (S.D.N.Y. 1999) and id. at 197, he used the term "slvish copies." In Bridgman he found no originality for creatng slides of pd works.

In Mannion, he distinguihsed that type of sweat of the brow effort as well as talking about other cases where the goal is total or near-total fidelity.

I used to wonder about Super-Realist paintings whose goal was to make you think you were seeing a photograph. I used to have a poster of one of the Guggenheim Museum on 5th Avenue. There the originality was in technique.

I will try and provide a URL for Mannion itself.

Anonymous said...

If a mere photocopy of, say, Dicken's Bleak House is still public domain--and it is--I can't see how a digital scan of "Starry Night" would be protected, no matter how much work went into it.

Michael Eisenberg said...

The scans would likely be treated the same as photographs, which have a long established history of protection. See Burrow-Giles Lithographic Co. v. Sarony 111 U.S. 53 (1884) for the justifications. One can apply the same arguments to scans which also can involve a lot of decisions in the their making.

Anonymous said...

Does the subject of a photograph have a bearing on the "nature" factor in a fair use analysis? Librarians digitizing old photos have asked me this - that is, does a simple photo that merely documents a building have any less protection than a more artistic photo, say of a thunderstorm?

Anonymous said...

Does a photograph distributed commercially of statues displayed constantly in public places constitute an infringement to the copyright of the creator of the statue? In this case the statue is a totem pole.

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Anonymous said...

So does copyright apply if you use someone else's image on your own blog in order to comment on it?