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

Started Aug 21, 2013 | Discussions thread
Chris59 Forum Pro • Posts: 14,440

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.

The oldest digital technology of all, writing, has been getting by with the current copyright laws very nicely thank you.

There is no way of objectively deciding beforehand what is an original or derivative work whether it is a photograph (digital or otherwise) or a piece of writing, or music for that matter - it is all in the "eye of the beholder" so to speak.

How many letters or words or paragraphs do I need to change or add in or leave out of Shakespeare's works to call them my own?  How many notes of Beethoven's ninth?  Would it make a difference if each word or note was of a different colour?  What if I just deleted the vowels?  What if I just changed the musical notation but kept the values the same?  What if I photographed a painting?  What if I painted a photograph?

What if I invented an original kind of code?  I would own the intellectual property that is the code, but if I copied someone else's work using the code I am in breach of copyright.  Indeed the words "intellectual property" imply not only that an intelligence created the work but that it requires an intelligence to decipher it.

To say that because a digital work is made of discrete numbers and that because they can be changed to other discrete values there is no way to determine an original or "derivative" unless it is subjective and therefore "arbitrary" is just nonsense.

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