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

Started Aug 21, 2013 | Discussions thread
Sante Patate
Senior MemberPosts: 3,960
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It's the judge ...
In reply to Mikhail Tal, Aug 22, 2013

Mikhail Tal wrote:

Brian wrote:

You don't need a mathematical model to make the decision

Who is "you"?

.. who is "you".

I could make an image that 10% or 1% or 0.01% of people claim they could tell was derived from an original, does that mean I violated the law? What if that small group of people are mistaken and the similarity is just a coincidence?

Independent creation is a defence to a claim of copyright infringement, and to establish copyright infringement it is essential to prove that there was actual copying.  So, if the similarity was truly a coincidence you have not breached copyright.

What if I derived my image from 1% of an original image? 2%? Any subjective definition you can give is unreproducible and any objective definition you can give is still arbitrary and can be circumvented (as in my example of changing the value of every pixel by 1).

It depends which 1%.  In the US you may breach copyright if you copy a small - 1% - but highly characteristic part of a work, and you may not if you copy much more if what you copy is not the substance of the work.  In some countries the law specifies a proportion: in Australia, eg, it is 10% (with some complications).

Changing every pixel by 1 would almost certainly not meet the standard for creation of a new work of being "transformative".  For example: the photograph on the left is by Philip Cariou, and the version on the right is by Richard Prince.  Prince had appropriated 25 (IIRC) of Cariou's works: Cariou sued, won, then lost on appeal because in 20-some (IIRC) cases the judges said Prince's work was "transformative".   They did not decide about this one, which is right on the borderline.

The law does this all the time: "reasonable care and skill", "reasonable belief", "due diligence", etc etc; if you don't like it, too bad.

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