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

Started Aug 21, 2013 | Discussions thread
Sante Patate Veteran Member • Posts: 5,908
Re: It's the judge ...

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 If you can't explain how I could have copied (because your image is unpublished and I have never been anywhere near your studio or your computer, eg), my claim of independent creation will prevail.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So in your opinion no law, even one that is completely illogical, should ever or will ever be modified or repealed?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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