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: It's the judge ...
In reply to Sante Patate, 11 months ago

Sante Patate wrote:

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.

The only way to actually prove that copying took place would be seize the device on which the copying took place and analyze its operational history. Otherwise all you have is circumstantial evidence which cannot solely constitute proof of copying.

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.

"If you don't like it, too bad."

So in your opinion no law, even one that is completely illogical, should ever or will ever be modified or repealed? Nor should one ever advocate for said change on the medium of one's choosing, as I am doing here?

You showed example that is "right on the borderline." Well, it appears (from those smalll thumbnails) that all the guy did was add a color cast and composite a face and guitar onto the original image. So I should be able to take any well-known image and add a much subtler color cast and a couple of barely visible composited elements and profit with impunity using this case as precedent, no? The point is that any time subjective judgments come into play then the constitutionally guaranteed equal protection under law becomes impossible and/or the law can be circumvented using such means as I have proposed and others. If I really want to copycat something I'll find a way to do it using some loophole or technicality that no judge can close without exceeding his or her jurisdiction.

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