If someone created a video clip using your photographs as their key source of inspiration could this be infringing the copyright in your photographs?
This question was in fact once brought into issue by no other than Madonna herself when she released a video clip for the song “Hollywood” which reinacted a series of classic images very similar to the racy photographs of the late fashion photographer Guy Bourdin.
According to media reports at the time, Madonna had always been a fan of the photographer had had been quoted as saying that she was really “into” Guy Bourdin. As flattering as this may be, Bourdin’s son, Samuel Bourdin was not impressed. He said there was a fine line between plagiarism and copying.
Samuel Bourdin sued Madonna in the Manhattan Federal Court claiming she had infringed copyright in his father’s works. The essence of his lawsuit was that an overwhelming number of scenes in the “Hollywood” video were substantially derived from his father’s famous photographs. ‘He said that the composition, background, wardrobe, lighting and décor appeared “strikingly similar” to his father’s works.’
We will never know the outcome as the case was settled between the parties out of court on confidential terms.
However, the case does raise some interesting issues for photographers. For example:
can someone else’s video clip infringe your photographs?
How can you differentiate between mere inspiration and a blatant “rip off”.
Protection of photographs
Australian copyright law protects photographs as “artistic works”.
Photographs taken before 1 May 1969 are protected for 50 years from the end of the year in which they were taken. After that they are protected for life plus 70 years.
There are three ways that someone can infringe copyright in your photos:
by reproducing the photo in material form – this can include making multiple prints or copies;
by publishing the photo; or
by “communicating the photo to the public” - which essentially translates to just posting it online.
Whether a copyright infringement will arise comes down to a question of fact and degree and it would be a qualitative rather than just a quantitative determination.
How can you know if someone has infringed copyright in your photograph?
If you believe that someone has infringed copyright in your photographs, the following guidelines may provide some assistance in determining whether you might have an actionable case.
No copyright in ideas
A fundamental rule in copyright law is that there can be no copyright in ideas – only in the way those ideas are expressed.
So, for example, going back to Madonna and the film clip, the idea to photograph a woman on an exercise bike wearing a pink body suit would not be protectable in its own right under copyright laws.
However, the way that idea is expressed, for example, the colours, the composition, the camera angle, lighting, how the women looked and what she wore and photography method used are the type elements which are generally protected under copyright law, especially if all of them are copied together.
Sometimes the distinction between the idea and expression can be a fine one.
What about the 10 percent rule?
Some people think that if you copy something and change it by 10 percent you are “off the hook” as far as breach of copyright is concerned.
Don’t be fooled. This is wrong.
The test for whether copyright has been infringed is whether a substantial part has been taken.
The test is measured by reference to the quality of the part copied as well as the quantity.
So for example, if someone copies the essential features of your photo, even though they may not have copied the work as a whole, this may still infringe copyright.
Subconscious copying
Believe it or not, someone can also infringe your copyright subconsciously by remembering something too well.
Although this issue in the context of photography has not been tested in Australian courts, there have been some cases in the music industry.
Perhaps the most famous of these involved the late George Harrison from the Beatles in 1971. At that time Harrison released the album All Things Must Pass, featuring what became a hit song, My Sweet Lord. That same year, Harrison was sued by the Chiffons. The Chiffons were a Motown group that released a song called He's So Fine over ten years before the release of My Sweet Lord. The problem was that other than the lyrics, the songs were identical.
Harrison's lawyers claimed that he hadn't “plagiarised” the song, but may have inadvertently heard bits and pieces of He's So Fine over the years at clubs, restaurants, and airports and so on.
They asserted that he unknowingly and subconsciously might have used the main chord progression.
The court considered that Harrison’s song had the same order and repetitive sequence and was set to “identical harmonies”. They concluded that Harrison unconsciously misappropriated the musical essence of “He’s so Fine” and he was found liable for copyright infringement.
He was ordered to pay royalties and damages.
"For photographers, you need to remember that the presumption of copying is the even stronger today because of the pervasiveness of communication media and use of the Internet"
Indirect copying
The courts also recognise the concept of indirect copying. Someone could copy your photograph through a medium of verbal description.
For example, in a 1985 New Zealand case, a plastics manufacturer wished to move into the Kiwi fruit pack market but was aware of the risk of infringing copyright in the design of the pack. It instructed its employee, a designer, who had never seen the pack to design a new pack for him. This would have been fine had it ended at that but the manufacturer gave the designer the specifications of the kiwi packs. Although the designer had never seen the pack and worked on designing a new pack for over 260 hours, the result was a very similar pack. This was held to be a copyright infringement.
The same thing could happen if someone described a photo to a photographer so that they could avoid the photographer copying. If they describe it in such detail that the photographer ends up creating a new photo that copies the old one the nexus for copying could be established. Liability could arise.
The crucial a link
If you can establish an objective similarity between your original photograph and someone else’s work this is only the first hurdle.
You must also be able to show that there was a causal link between your photo and the copy.
If someone creates a photograph entirely independently for example by being at the same place at the same time then that will generally NOT amount to an infringement.
Questions to ask when considering copyright infringement and photographs
Many copyright matters are not straightforward. Questions to ask include:
Can you prove copying occurred?
How much was copied?
Was a substantial part of the work taken? Have you considered the quality of what was taken and not just the quantity?
If you believe that someone has copied your photo, or you are inspired by someone else’s photograph and are not sure if copying it will amount to copyright infringement, seek legal advice.
Here is an example of photographs taken in the 1920s that are now out of copyright and in the “public domain”. If Madonna had picked on of these, the outcome would have been different.
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