5 ms·

I'm confused. We think that photographers ("2d-scanners"?) deserve the copyright to their photos of public-domain objects, but "3d-scanners" don't? What's the

I'm confused. We think that photographers ("2d-scanners"?) deserve the copyright to their photos of public-domain objects, but "3d-scanners" don't? What's the reasoning for that?

kchamplewski 7y ago
Photographers don't automatically gain copyright of a photo by virtue of it being a photo - they gain copyright when they create what the law considers a copyrightable work. In practice, most photos involve creating or capturing a scene in a unique or new way, and this adds something new sufficient to make the photograph a new work and hence subject to copyright. The act of photographing a public domain painting in such a way that you just reproduce the painting and add nothing new, however, doesn't necessarily create a new work - it may instead count as a reproduction of that original work and hence subject to the original work's copyright, as no new copyrightable material is added. There is a bit of a grey area in that if I say, arrange a whole bunch of public domain art in a particular way and photograph it, I could quite reasonably argue that my arrangement itself consists of a work and so my photographs are subject to copyright. Similarly if I parody or otherwise transform a public domain work, I can assert that my work is copyrightable as it is transformative. This 3D scan doesn't fall into this area however since the scan was clearly intended to reproduce the original work, as opposed to create a new copyrightable work.
- perl4ever 7y ago
  As far as I know, 3d scanning is not a matter of just pushing a button on a device, whereas a photo can be, so the presumption ought to be that the former involves more creativity than the simplest example of the latter.
  - nitrogen 7y ago
    Tedious work and creativity are completely orthogonal.
    - perl4ever 7y ago
      I would say they are definitely not orthogonal. Things that aren't automated and aren't easy (and some that are easy) require choosing from a near-infinite number of alternatives in a way that can't be or hasn't been defined in a mechanistic way. If I claim that seems like a reasonable definition of creativity, what do you think is missing from it?
      - andreareina 7y ago
        It's a question of expression vs reproduction. A 3d scan copies the object being scanned, without interpretation or (intentional) embellishment. It's the same with photographs taken for documentation purposes. The skill required doesn't matter. I used to be a photographer, and a tech at a high-end photo lab (e.g. we had a couple of Condé Nast magazines as clients). A lot of jobs incurred more work from the technically demanding end (high resolution scans, color matching) than the creative end. It's not always clear-cut, there's usually going to be a bit of both sides. There's the whole idea of derived works, where the changes you've made are yours but the work as a whole is also entangled in the copyright of the original. But the more the new work is (meant to be) a faithful reproduction, the more it's "just" a copy and not a new riff. Again, it's about the intention and the difference in content between old and new, not so much about how much work or skill was required.
        perl4ever 7y ago
        I'm not experienced in creating complex 3D models, but my passing acquaintance with such things (including trying to write a program to convert points to a mesh once) makes me think the claim there is no interpretation or more than one way to create a model of an object is absurd. This seems like an extreme example of assuming something you haven't done is trivial. Another separate point, supposing for the sake of argument 3D models are not creative... It is well known that, say, a "white pages" style phone directory was ruled not to be copyrightable. But does that mean it is a copyright violation?
        andreareina 7y ago
xoa 7y ago
Because no matter the effort it's ultimately a factual compilation, a pure work of collecting objective facts about something in the public domain with no creativity at all. Photography in general (with the exception of an exact mechanical copy attempt), precisely because it's distilling a 4D world into a 2D image, necessarily involves subjective choice in terms of framing, timing, etc. For any given event there are a limitless number of ways and specific timings/positions to try to capture it in photographs. A 3D scan of an object though is objective, an effort to put together as exact a total record of it as technologically feasible. It might be very expensive and take a lot of work, but that's not good enough. In the USA at least, "sweat of the brow" doctrine does not legally exist for copyright. Ie., it doesn't matter at all how much work someone put into something not copyrightable, it's still not copyrightable. "Mere collections of facts" fall under this, with a classic example being a phonebook. It might (at least historically) have been an enormous amount of work to accurately collect, compile and maintain a phone listing for an area. But it would have no copyright protection. A unique and creative presentation could, but not something basic and expected like alphabetical or numeric order. This has been definitively settled by the Supreme Court. A 3D point cloud is a mere collection of facts about the geometry of an object. If the object is already public domain that's that. You could certainly use that data to make something creative and copyrightable in a large variety of ways though.
- jdmichal 7y ago
  Worth mentioning that recipes cannot hold copyright in the US for this same reason. (By recipe I mean the functional list of ingredients and directions.) https://paleoflourish.com/recipe-copyright/#protected https://paleoflourish.com/recipe-copyright/#protected
  - dredmorbius 7y ago
    The recipe exclusion has more to do with the functional aspects limitation of copyright. That is: copyright protects authorship and expression, but not the functional properties of a work. A recipe's failures under copyright follow both from it being a factual relation (ingredients, quantities, treatment, cooking), and a result (a finished dish or baked good). Neither of these is protected under US copyright law. See: Publications International, Ltd. v. Meredith Corp.
larnmar 7y ago
You were downvoted but I think it’s a good question. One argument would be that photography involves many creative choices regarding angle, lighting, and so forth, so there’s millions of photos of the Grand Canyon and they’re all different, whereas every 3D scan of the bust would be basically the same except maybe for resolution. On the other hand, consider maps, or to get really specific, topographic maps. Most people (apart from those against copyright in general) would say you should retain copyright on a topographic map you’ve made of the Grand Canyon, even though that’s really just a 3D scan.
- xoa 7y ago
  >would say you should retain copyright on a topographic map you’ve made of the Grand Canyon, even though that’s really just a 3D scan. But it's absolutely not "just a 3D scan". I mean, unless you literally had a bunch of drones or something fly through the Grand Canyon and make an actual 3D scan as a pure replication with no further work, sure that'd be a real 3D scan. But actual maps always require creativity. There is no one way to draw lines, objects, water, etc. What should be included on a map, and what is noise? How do you balance between level of detail vs noisiness? What is worthy of being included? What kind of coloring/texture/shading? A hundred cartographers with the exact same tech could all make a map of an area and every single map would be different to one degree or another, not least depending on the exact purpose the map was intended for. That's was particularly true with the limitations of paper, but it still is even electronically. Take a look at the standard map view for Apple Maps vs Google Maps vs various Open Street Maps etc. For the exact same area they'll all be emphasizing different things, and reasonable people very much do disagree on the best way. So maps are very much copyrightable (though lots are in the public domain since works of the USG are all public domain). They're not just mechanical reproductions.
detaro 7y ago
I think "photographers deserve copyright to reproductions of public-domain objects" is also quite controversial, and the law in various countries varies on it. (in Germany, as far as I know the current practice is indeed that they do, but this is also widely criticized)
- clon 7y ago
  A photographer can, at the very least, choose the angle from which to project. There are avenues for some amount of unique creative expression. This 3D scan though, is not a reproduction. It is a measurement. If I run my tape measure around Nefertiti's head, I will obtain a measurement. If you repeat it, it will be the same, provided we both know how to use a tape measure, limited only by the fidelity of our tool. In fact, any technician, given the tool and a manual, will create precisely the same 3D model. Having seen Nefertiti with my own eyes, it was a transformative experience, for which I am thankful. But I could never shake the feeling that it should not be in Berlin. I was only able to justify my purchasing the ticket from the looters, since they can be considered to render a service by at the very least preserving it. Like a hostage should be grateful for receiving food. But they certainly do not own it, nor any rights derived from it.
  - perl4ever 7y ago
    If there was only one way to create a 3D model, wouldn't it be a matter of just pressing a button? Now, if it was, that wouldn't totally prove it was not creative, since 2D photography can be as simple as pressing a button. But if there are many ways (like, greater than the number of atoms in the universe) to do something, it seems logical to presume it is creative. Also, another way to look at it is that you can derive a 3D model from many 2D photos. So does it make sense to claim you can derive something non-creative from many creative works, yet the thing it relates to is the original?
  - detaro 7y ago
    My wording above wasn't quite precise enough: I was thinking of "reproductions of public domain 2D images (drawings, paintings, ...)" specifically, where creativity plays less a role, and what the German legal precedent is about.

I'm confused. We think that photographers ("2d-scanners"?) deserve the copyright to their photos of public-domain objects, but "3d-scanners" don't? What's the reasoning for that?

kchamplewski 7y ago

Photographers don't automatically gain copyright of a photo by virtue of it being a photo - they gain copyright when they create what the law considers a copyrightable work. In practice, most photos involve creating or capturing a scene in a unique or new way, and this adds something new sufficient to make the photograph a new work and hence subject to copyright. The act of photographing a public domain painting in such a way that you just reproduce the painting and add nothing new, however, doesn't necessarily create a new work - it may instead count as a reproduction of that original work and hence subject to the original work's copyright, as no new copyrightable material is added. There is a bit of a grey area in that if I say, arrange a whole bunch of public domain art in a particular way and photograph it, I could quite reasonably argue that my arrangement itself consists of a work and so my photographs are subject to copyright. Similarly if I parody or otherwise transform a public domain work, I can assert that my work is copyrightable as it is transformative. This 3D scan doesn't fall into this area however since the scan was clearly intended to reproduce the original work, as opposed to create a new copyrightable work.

perl4ever 7y ago
As far as I know, 3d scanning is not a matter of just pushing a button on a device, whereas a photo can be, so the presumption ought to be that the former involves more creativity than the simplest example of the latter.
- nitrogen 7y ago
  Tedious work and creativity are completely orthogonal.
  - perl4ever 7y ago
    I would say they are definitely not orthogonal. Things that aren't automated and aren't easy (and some that are easy) require choosing from a near-infinite number of alternatives in a way that can't be or hasn't been defined in a mechanistic way. If I claim that seems like a reasonable definition of creativity, what do you think is missing from it?
    - andreareina 7y ago
      It's a question of expression vs reproduction. A 3d scan copies the object being scanned, without interpretation or (intentional) embellishment. It's the same with photographs taken for documentation purposes. The skill required doesn't matter. I used to be a photographer, and a tech at a high-end photo lab (e.g. we had a couple of Condé Nast magazines as clients). A lot of jobs incurred more work from the technically demanding end (high resolution scans, color matching) than the creative end. It's not always clear-cut, there's usually going to be a bit of both sides. There's the whole idea of derived works, where the changes you've made are yours but the work as a whole is also entangled in the copyright of the original. But the more the new work is (meant to be) a faithful reproduction, the more it's "just" a copy and not a new riff. Again, it's about the intention and the difference in content between old and new, not so much about how much work or skill was required.
      - perl4ever 7y ago
        I'm not experienced in creating complex 3D models, but my passing acquaintance with such things (including trying to write a program to convert points to a mesh once) makes me think the claim there is no interpretation or more than one way to create a model of an object is absurd. This seems like an extreme example of assuming something you haven't done is trivial. Another separate point, supposing for the sake of argument 3D models are not creative... It is well known that, say, a "white pages" style phone directory was ruled not to be copyrightable. But does that mean it is a copyright violation?
        andreareina 7y ago

xoa 7y ago

Because no matter the effort it's ultimately a factual compilation, a pure work of collecting objective facts about something in the public domain with no creativity at all. Photography in general (with the exception of an exact mechanical copy attempt), precisely because it's distilling a 4D world into a 2D image, necessarily involves subjective choice in terms of framing, timing, etc. For any given event there are a limitless number of ways and specific timings/positions to try to capture it in photographs. A 3D scan of an object though is objective, an effort to put together as exact a total record of it as technologically feasible. It might be very expensive and take a lot of work, but that's not good enough. In the USA at least, "sweat of the brow" doctrine does not legally exist for copyright. Ie., it doesn't matter at all how much work someone put into something not copyrightable, it's still not copyrightable. "Mere collections of facts" fall under this, with a classic example being a phonebook. It might (at least historically) have been an enormous amount of work to accurately collect, compile and maintain a phone listing for an area. But it would have no copyright protection. A unique and creative presentation could, but not something basic and expected like alphabetical or numeric order. This has been definitively settled by the Supreme Court. A 3D point cloud is a mere collection of facts about the geometry of an object. If the object is already public domain that's that. You could certainly use that data to make something creative and copyrightable in a large variety of ways though.

jdmichal 7y ago
Worth mentioning that recipes cannot hold copyright in the US for this same reason. (By recipe I mean the functional list of ingredients and directions.) https://paleoflourish.com/recipe-copyright/#protected https://paleoflourish.com/recipe-copyright/#protected
- dredmorbius 7y ago
  The recipe exclusion has more to do with the functional aspects limitation of copyright. That is: copyright protects authorship and expression, but not the functional properties of a work. A recipe's failures under copyright follow both from it being a factual relation (ingredients, quantities, treatment, cooking), and a result (a finished dish or baked good). Neither of these is protected under US copyright law. See: Publications International, Ltd. v. Meredith Corp.

larnmar 7y ago

You were downvoted but I think it’s a good question. One argument would be that photography involves many creative choices regarding angle, lighting, and so forth, so there’s millions of photos of the Grand Canyon and they’re all different, whereas every 3D scan of the bust would be basically the same except maybe for resolution. On the other hand, consider maps, or to get really specific, topographic maps. Most people (apart from those against copyright in general) would say you should retain copyright on a topographic map you’ve made of the Grand Canyon, even though that’s really just a 3D scan.

xoa 7y ago
>would say you should retain copyright on a topographic map you’ve made of the Grand Canyon, even though that’s really just a 3D scan. But it's absolutely not "just a 3D scan". I mean, unless you literally had a bunch of drones or something fly through the Grand Canyon and make an actual 3D scan as a pure replication with no further work, sure that'd be a real 3D scan. But actual maps always require creativity. There is no one way to draw lines, objects, water, etc. What should be included on a map, and what is noise? How do you balance between level of detail vs noisiness? What is worthy of being included? What kind of coloring/texture/shading? A hundred cartographers with the exact same tech could all make a map of an area and every single map would be different to one degree or another, not least depending on the exact purpose the map was intended for. That's was particularly true with the limitations of paper, but it still is even electronically. Take a look at the standard map view for Apple Maps vs Google Maps vs various Open Street Maps etc. For the exact same area they'll all be emphasizing different things, and reasonable people very much do disagree on the best way. So maps are very much copyrightable (though lots are in the public domain since works of the USG are all public domain). They're not just mechanical reproductions.

detaro 7y ago

I think "photographers deserve copyright to reproductions of public-domain objects" is also quite controversial, and the law in various countries varies on it. (in Germany, as far as I know the current practice is indeed that they do, but this is also widely criticized)

clon 7y ago
A photographer can, at the very least, choose the angle from which to project. There are avenues for some amount of unique creative expression. This 3D scan though, is not a reproduction. It is a measurement. If I run my tape measure around Nefertiti's head, I will obtain a measurement. If you repeat it, it will be the same, provided we both know how to use a tape measure, limited only by the fidelity of our tool. In fact, any technician, given the tool and a manual, will create precisely the same 3D model. Having seen Nefertiti with my own eyes, it was a transformative experience, for which I am thankful. But I could never shake the feeling that it should not be in Berlin. I was only able to justify my purchasing the ticket from the looters, since they can be considered to render a service by at the very least preserving it. Like a hostage should be grateful for receiving food. But they certainly do not own it, nor any rights derived from it.
- perl4ever 7y ago
  If there was only one way to create a 3D model, wouldn't it be a matter of just pressing a button? Now, if it was, that wouldn't totally prove it was not creative, since 2D photography can be as simple as pressing a button. But if there are many ways (like, greater than the number of atoms in the universe) to do something, it seems logical to presume it is creative. Also, another way to look at it is that you can derive a 3D model from many 2D photos. So does it make sense to claim you can derive something non-creative from many creative works, yet the thing it relates to is the original?
- detaro 7y ago
  My wording above wasn't quite precise enough: I was thinking of "reproductions of public domain 2D images (drawings, paintings, ...)" specifically, where creativity plays less a role, and what the German legal precedent is about.