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

Started Aug 21, 2013 | Discussions
Mikhail Tal
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Time to debunk IP in digital art and photography once and for all
Aug 21, 2013

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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

57even
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 21, 2013

Ask a copyright/patent lawyer. IP is a legal concept not a moral or logical one, so your argument is a complete waste of energy.

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Mentor_1
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 21, 2013

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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

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Chato
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Re: Time to debunk IP in digital art and photography once and for all
In reply to 57even, Aug 22, 2013

57even wrote:

Ask a copyright/patent lawyer. IP is a legal concept not a moral or logical one, so your argument is a complete waste of energy.

While a landscape is fixed, at least in space if not light, maybe you could get away with this. On the other hand a shot of people, or a place WITH people, or any other creature of the world, will not lend itself to your technique...

Dave

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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to 57even, Aug 22, 2013

57even wrote:

Ask a copyright/patent lawyer. IP is a legal concept not a moral or logical one, so your argument is a complete waste of energy.

What exactly do you think the law is based on if not morality or logic? My argument is that IP laws are logically bankrupt. You are welcome to attempt to refute my argument.

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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mentor_1, Aug 22, 2013

Mentor_1 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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

You missed the point completely. I do not deny that IP law exists. I argue that the laws are logically bankrupt and therefore should not exist. A court can only declare a law unconstitutional but the constitution is itself a set of laws, so if IP laws are not unconstitutional than the constitution in question is illogical and should be amended so as to invalidate IP law.

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Mentor_1
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 22, 2013

Mikhail Tal wrote:

Mentor_1 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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

You missed the point completely. The courts do not make the laws. They are irrelevant in this discussion. I do not deny that IP law exists. I argue that the laws are logically bankrupt and therefore should not exist.

I fear you are bankrupt and trying to be a thief.

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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mentor_1, Aug 22, 2013

Mentor_1 wrote:

Mikhail Tal wrote:

Mentor_1 wrote:

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

You missed the point completely. The courts do not make the laws. They are irrelevant in this discussion. I do not deny that IP law exists. I argue that the laws are logically bankrupt and therefore should not exist.

I fear you are bankrupt and trying to be a thief.

I fear that by making a failed attempt at humor you've conceded the point without realizing it. By the way I edited that post to make it more precise.

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Mentor_1
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 22, 2013

Mikhail Tal wrote:

Mentor_1 wrote:

Mikhail Tal wrote:

Mentor_1 wrote:

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

You missed the point completely. The courts do not make the laws. They are irrelevant in this discussion. I do not deny that IP law exists. I argue that the laws are logically bankrupt and therefore should not exist.

I fear you are bankrupt and trying to be a thief.

I fear that by making a failed attempt at humor you've conceded the point without realizing it. By the way I edited that post to make it more precise.

Trying to defeat any copyright protection is criminal no matter how you may PERSONALLY interpret the law or rules. Get over it and stop the BS, good bye.

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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mentor_1, Aug 22, 2013

Mentor_1 wrote:

Mikhail Tal wrote:

Mentor_1 wrote:

Mikhail Tal wrote:

Mentor_1 wrote:

Go for it, see what happens and good luck.

I would put money on you losing as the courts would see your efforts only as way to try to evade the IP which is NOT LEGAL, at least here in the greatest country on earth, Canada.

You missed the point completely. The courts do not make the laws. They are irrelevant in this discussion. I do not deny that IP law exists. I argue that the laws are logically bankrupt and therefore should not exist.

I fear you are bankrupt and trying to be a thief.

I fear that by making a failed attempt at humor you've conceded the point without realizing it. By the way I edited that post to make it more precise.

Trying to defeat any copyright protection is criminal no matter how you may PERSONALLY interpret the law or rules. Get over it and stop the BS, good bye.

Try re-reading the original post and you'll notice that my second paragraph specifically considers a hypothetical example to illustrate that I can edit an image the same way and the law interprets it differently depending ONLY on the magnitude of my edit, as opposed to the method, and even then there is no precise threshold at which the legal interpretation. It is as I said entirely subjective. My purpose is not to defeat the law, but rather to expose it as subjective, arbitrary, ambiguous, and therefore illogical.

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lylejk
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In reply to Mikhail Tal, Aug 22, 2013

...royalty free images.   Plenty out there.  Still, how hard is it to just ask please.   Now, if you want to make a profit, then it may go beyond just fair use, so Creative Commons may not be applicable.   Still, I don't sell anything I create so they can try to get 1000% of $0.    lol

If I ever do decide to go pro, I would just take my Leica and use my own captures and you can't copyright Paris.   

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Tone Row
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 22, 2013

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.

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.

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Brian
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 22, 2013

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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

This is really quite simple. If you can tell that the derivative came from the original then you have violated the law.

You don't need a mathematical model to make the decision nor is it required either.
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Diopter
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In reply to Mikhail Tal, Aug 22, 2013

I believe it is the worst forum to place your concerns.

Maybe the magicians from the Retouching Forum would have more response to that.

By the way:

Susan Sontag wrote the entire book on photography without supporting it by any image but her own mug shot on the back of the cover.

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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Tone Row, Aug 22, 2013

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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Mikhail Tal
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Brian, Aug 22, 2013

Brian 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. On the other hand, if you give me a number of pixels I must change by a certain combined value, that's still arbitrary, not to mention a logistical nightmare to enforce given different methods of color management and the lossy nature of jpegs. We haven't even gotten into the vagaries of adjudicating changes in resolution and dimensions that can also add or subtract pixels or modify their values.

So here I have proved it impossible to objectively and consistently distinguish a derivative image from a unique image, therefore any attempt to claim IP for any digital image is logically bankrupt. You can claim an image FILE as non-intellectual property because it exists within definable parameters on some physical server somewhere, but as soon as you permit someone else to access that file or the image it renders (by posting it on the internet or even just by privately sharing the image in a private setting) then the image itself is fair game for anyone to attempt to reproduce and use as they see fit. And don't tell me I wouldn't like that if someone did that to my image because I'd gladly accept that possibility in exchange for the legal right to modify and reproduce the images of others at my own discretion.

This is really quite simple. If you can tell that the derivative came from the original then you have violated the law.

You don't need a mathematical model to make the decision nor is it required either.
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Brian

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? 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).

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Sante Patate
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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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Mikhail Tal
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Re: It's the judge ...
In reply to Sante Patate, Aug 22, 2013

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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Sante Patate
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Re: It's the judge ...
In reply to Mikhail Tal, Aug 22, 2013

Mikhail Tal wrote:

Sante Patate wrote:

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.

No. Copyright breach requires copying. If you claim that my image breaches your copyright you have to show, at a minimum, that I could have copied your image, and that the similarity between yours and mine is so extreme that independent creation is unlikely. If you can't explain how I could have copied (because your image is unpublished and I have never been anywhere near your studio or your computer, eg), my claim of independent creation will prevail.

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 are not trying to modify or repeal "a" law, you are trying to overthrow all the vast areas of law that depend on judgements about what is "reasonable under the circumstances". That standard has developed not because the law is an ass, but because that standard allows decision-making the sensitivity to circumstance on which justice depends.

I am no friend of strong copyright law. I have repeatedly argued here for winding back the scope of copyright and for re-defining it as a labour right instead of a property right, but trying to eliminate subjectivity in assessing the fair use provisions is not the way forward.

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?

No, where do you get that idea? If you don't know who Richard Prince is and how this image fits into his larger project that (probably) makes this transformative use, you should.

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.

Nonsense. Subjective judgements - the "reasonable man" standard and its variants - do not negate equal protection under the law and does not make the law worthless, neither in the area of copyright or in any of the myriad other areas it is applied.

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57even
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Re: Time to debunk IP in digital art and photography once and for all
In reply to Mikhail Tal, Aug 22, 2013

Mikhail Tal wrote:

57even wrote:

Ask a copyright/patent lawyer. IP is a legal concept not a moral or logical one, so your argument is a complete waste of energy.

What exactly do you think the law is based on if not morality or logic? My argument is that IP laws are logically bankrupt. You are welcome to attempt to refute my argument.

I long ago gave up second guessing how lawyers would interpret such a situation. Logic and the law don't always have much to do with each other.

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