Time to debunk IP in digital art and photography once and for all

Started 11 months ago | Discussions thread
Mikhail Tal
Regular MemberPosts: 281
Re: Time to debunk IP in digital art and photography once and for all
In reply to Tone Row, 11 months ago

Tone Row wrote:

Mikhail Tal wrote:

My contention is that it is impossible to objectively and reproducibly distinguish between an original work and a derivative work on a digital medium. Therefore I can take someone's original work and apply edits in such a manner that it looks the same but is still an original work. Any claims to the contrary would be entirely subjective and arbitrary in nature.

Here is a hypothetical example. Suppose I started with a digital image I found on the web at its native resolution that was copyrighted with the most exclusive legal protection possible, and I adjusted every pixel by one unit of value in any direction on the color gamut. So for a pixel that read 24,174,39, I randomly add or subtract 1 to one of those numbers. The resulting image I'm sure would commonly and legally be considered at best a derivative image, if not an outright reproduction, since it would look virtually identical to the naked eye and still very similar even at full magnification. So if I tried to use this image commercially, I'd probably get sued and lose.

Now suppose I started over with the same original image but this time I randomly changed each pixel's values by a random combined total between 1 and 762 in either direction. In other words a 0,0,0 pixel could change to 254,254,254, or it could become 0,0,1. Assuming 4 - 5 = 255, if I edited the image in this manner, it would be technically be a derivative image, but the end result would look as though I just randomly assigned a value to every pixel and there would be no indication that I began with an existing copyrighted image.

In both cases I edited the image the exact same way, the only difference being the distanced I moved each pixel along the color gamut compared to the original. Yet visually the results are in complete contrast. So the obvious question is, how much must I change the pixel values for it to no longer be considered a derivative image? What if I changed the value of each pixel by a random combined total of between 1 and 50 in either direction, would that be enough to render my image unique?

You can't answer "I know it when I see it" or "it depends if you've changed the image's concept or introduced a unique perspective" because that's subjective and arbitrary and therefore an impossible standard to uniformly reproduce across multiple different cases. One person might say yes, I changed the idea, another might disagree. Ideas cannot be defined by sensory perception so they are not constitute valid evidence in a fair arbitration.

Photography is a visual medium, so you can in fact answer "I know it when I see it". That's where you are tripped up. If you randomly change every pixel, the photo would not look the same, it would actually look like nothing, and there would be no reason to steal someone's photo since the randomness of the changes means you could start from 100% pure white pixels and get the same effect.

It would look the same if I only changed every pixel by one value, unless you looked at it at 100% magnification. Especially if I changed the same value (R, G, or B) in the same direction for each pixel. I guarantee you could not tell the difference even if you looked at 100% magnification unless you had superhuman eyesight or unless you could digitally analyze the two images with a precisely color-managed workflow.

If this were music, I could take all the notes in U2's Pride and randomly change them, and the result would sound nothing like the original. Outside of the novelty of using every note of U2's Pride to create a new song with, no one would care. However, if I tried speeding up Pride by 20 beats and calling the work mine Bono would sue me the next day.

That's exactly the problem, it's easy to make a judgement at the two extreme ends of the editing spectrum but you can't draw a precise point of modification at which the work becomes a new original rather than a derivative. And in the case of music I could again ask, how many notes do I need to change and by how much per note. The only answer you'll be able to give me is "Depends if it sounds close enough to the original from my subjective point of view." Surely you can see how such a criterion is completely illogical.

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