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Copyright denied because the model’s pose is not unique
- Waterluvian 4y agoThat is an unoriginal pose. Which is why it seems ridiculous that a copyright would be based on pose. There’s still a lot of originality present. I guess the issue is that the authorities need to feign some sort of objectivity and while a human can say “these are obvious imitations/reproductions” they might struggle to define a set of rules you could use to test every case. Copyright continues to feel weird to me.
- moistly 4y agoI’ll agree that the pose isn’t original, but at the same time Jeff Dieschburg should be shamed forever for his blatant rip-off of her work. It’s the friggin The Office meme, “They’re both the same.” What an ass.
- Waterluvian 4y agoIndeed. It’s basically that highly offensive thing you see on TikTok where someone simply mirrors a video they steal. And I think there is always plenty of room to discuss what’s legal and what’s right qs two separate things.
- SanjayMehta 4y agoArt feels weird to me. https://www.elitereaders.com/ridiculous-paintings-insanely-sold-for-millions-dollars/ https://www.elitereaders.com/ridiculous-paintings-insanely-s...
- Waterluvian 4y agoI don’t understand a lot of these pieces. But I’ve also experienced tremendous emotion over something that I try to share with others who give the same kind of “uhh what?” response. So I accept that I’m probably not the audience. That being said I think there’s probably a few things that happen sometimes: 1. Money laundering 2. Rich people buying status 3. Rich people figuring out what exactly to do with their money 4. like crypto and other things, it has value because a community has decided it has value. It doesn’t have to make any sense. It’s self-fulfilling.
- SanjayMehta 4y agoAll art is highly subjective - "I know it when I see it." I think what I want to say is that the world around art is weird to me. As for money laundering, Jackson Pollock comes to mind. https://medium.com/@MichaelMcBride/how-jackson-pollock-and-the-cia-teamed-up-to-win-the-cold-war-6734c40f5b14 https://medium.com/@MichaelMcBride/how-jackson-pollock-and-t... And politicians receiving vast sums of money for their "art." Makes one go "hmmm." https://www.indiatimes.com/culture/who-we-are/wtf-mamata-banerjee-paintings-sold-for-9-crores-285240.html https://www.indiatimes.com/culture/who-we-are/wtf-mamata-ban...
- userbinator 4y agoIn general, art is probably a https://en.wikipedia.org/wiki/Veblen_good https://en.wikipedia.org/wiki/Veblen_good
- missurunha 4y agoI'd say the most important after the money laundry aspect is that people treat art as an investment. https://www.forbes.com/sites/forbesbusinesscouncil/2022/09/28/the-remarkable-resilience-of-contemporary-art-as-an-investment/ https://www.forbes.com/sites/forbesbusinesscouncil/2022/09/2...
- camoufleur 4y agoThink of it this way: props from the original Star Wars films fetch millions of dollars at auction. Most movie fans and even most Star Wars fans would never pay that much for a prop. But you can understand wanting to own part of a piece of history. Now, consider these paintings are props for a movie you haven't seen yet, a movie called 'the history of art'. Perhaps if these pieces had a significance to you beyond their visual appearance, it would make more sense why they could be so valuable (to a very small minority).
- dale_glass 4y agoA lot of art is part of some sort of conversation that those in the know had, and so it makes sense to them, but those outside that scene have no idea. What I think is particularly confusing about art is that in other disciplines, you pretty much never see such things exhibited to the public. Eg, take Perl poetry for instance: # The Cow # by Ogden Nash # # The cow is of the bovine ilk; # One end is moo, the other, milk. # package cow; @ISA = qw(bovine); push @cow, 'moo'; unshift @cow, 'milk'; Now imagine somebody framed that and hung it in a museum and normal people trying to understand what is this all about.
- UncleMeat 4y ago"Particular art pieces sell for ridiculous prices because of the strange world of art investment" is a reasonable opinion to hold. But the article is just "wow, Rothko sure is shit."
- blondin 4y agonot an artist but, reading between the lines, her real fight is against people who are copying. and profiting from her work. that said, i agree with the ruling. there are chances that other artists who haven't seen her art before would come up with that scene. or that specific pose. not the other artistic choices, but the pose and the flowers, and even the kimono, yes.
- nine_k 4y agoCopyright is not a patent. If you paint a copy of Mona Lisa, it will be under your copyright, because of the provenance. There will be no doubt that it's your work, not Leonardo's.
- VanTheBrand 4y agoThat’s actually incorrect. In your example it’s fine only because the painting is old enough to be in the public domain. In general (with rare exceptions) you can’t paint an exact copy of a work under copyright and then utilize that copyright without permission of the original copyright holder. What you’ve created is a “derivative work.”
- kzrdude 4y agoThe face of the person in the painting is recognizable across the copying, I don't see how it can not be a copyright issue. Clearly cribbed her work completely and changed some color and details.
- shadowgovt 4y agoWhich is, indeed, legal in many jurisdictions (including the US). Cross-reference Andy Warhol's famous silk screens. For example, the reproduction of Elizabeth Taylor (https://www.sothebys.com/en/articles/andy-warhol-and-his-process https://www.sothebys.com/en/articles/andy-warhol-and-his-pro...) was sourced from a 1950s publicity photo.
- detaro 4y ago
- luxuryballs 4y agoImagine a problem that someone wouldn’t have if copyright protection had never existed to begin with? Here’s a great example of one.
- tgv 4y agoCopyright does address a very real issue. How would you solve it?
- Fargren 4y agoCopyright addresses a real issue but at the same time creates new issues. It's not obvious to me that a world without copyright is better than one with it. Just because something solves a problem doesn't always mean that it's worth doing, if the costs are too high.
- djbebs 4y agoCopyright addresses no issue, it only causes them.
- autoexec 4y agoI don't really understand, I'd think that complete reproduction of her photo should be prohibited under copyright. No one should be able to take copies of her photo and paste it onto whatever product they want to sell for example. If her exact photo has been denied copyright protections I'd agree that's a problem. That said, the pose is not unique and her example of someone who "copied" her work (https://nitter.net/pic/orig/media%2FFjY3coxaYAImURa.jpg https://nitter.net/pic/orig/media%2FFjY3coxaYAImURa.jpg) wasn't identical and should be allowed. It's clearly directly influenced by the original, but if someone else wants to create something similar that's just art. It's what all artists do and always have done. If artists couldn't create their own versions of things captured in works by other artists, new art could not exist. No one should be able to copyright a "style" or a pose just like no one should be able to copyright a genre or a camera angle.
- glandium 4y agoHow is it only "inspired" when it's not only the same pose, but the same person and the same clothes, up to its individual folds. "Inspired" would be inviting a model to wear the same thing and take the pose, and painting that. Here, it's a reproduction of the mirrored picture, with different colors and trivial changes (like the earings). Calling this inspiration is utterly ridiculous.
- autoexec 4y ago> but the same person and the same clothes, up to its individual folds. It's not the same person. The face is very different, as is the hair. not the same folds either, look at the white cloth near the flower. It's also a painting and not a photograph. If a painter creates a painting of Grand Central Station has he violated the copyright of the architect? Artists must be able to create, by their own hand, their own versions of things depicted in other works of art or even of other artistic works themselves. (see for example https://publicdelivery.org/fernando-botero-mona-lisa/ https://publicdelivery.org/fernando-botero-mona-lisa/)
- glandium 4y ago
- vr46 4y agoThere was a clear precedent set many years ago when an artist did this exact thing and lost in court. The photograph was of a Native American in profile with specific headgear that was copied into a computer illustration. We are talking 1990s here. No idea how to find it.
- SanjayMehta 4y agoI went searching for this case and found this fascinating article on advertising. https://muse.jhu.edu/article/509019 https://muse.jhu.edu/article/509019
- vr46 4y agoThat was interesting nevertheless. We really could do a massive public service by finding that case. The illustration won an award - advertising I think - and that's how the whole issue came to light. The illustrator genuinely didn't realize he was infringing on copyright as he was working in a different medium.
- pbhjpbhj 4y agoThe tweets appear to obfuscate the actual issue. From the thread _I guess_ that she took a standard pose of a model, then someone else came along and posed the same model in the same way? If that's right, then the Luxembourg courts would be upholding a quite long standing position. The following is entirely my personal opinion and in no way relates to my employment. Consider if ordinary poses were considered creative enough to be copyright works: the first person who took a square-on head and shoulders would own the rights to that pose and no domestic-style face-on photos could be taken without a license (or, what are we at now, until 70y after their death). Consider if you couldn't hire a model someone else had hired [to shoot standard poses], the first shoot they did might have to be their last. You'd have to pay them enough to cover their entire career; if the photographer kept the copyright (outside USA-style Fair Use) that person could never take photos of themselves again.
- rippercushions 4y agoNope. Zhang took a photograph of a model, and the guy in Luxembourg basically copied the photo in a painting, no new model involved. This article has a side by side comparison: https://www.theonlinecitizen.com/2022/12/08/singaporean-photographer-devastated-by-luxembourgs-copyright-ruling/ https://www.theonlinecitizen.com/2022/12/08/singaporean-phot...
- djur 4y agoThe pose is only one of many creative elements in the portrait, and if the painting had simply replicated the same pose nobody would have even noticed, much less cared.
- low_tech_love 4y agoShe didn’t ask for copyright on the pose, she asked for copyright on the entire thing. The robots in Luxembourg were the ones who argued the pose isn’t original. That’s why you need human beings to do such an evaluation, many aspects of the picture need to be taken together at the same time in order to determine the originality. Any minimally reasonable human being can see that the person stole her work and sold it for profit.
- shadowgovt 4y agoThis is somewhat demonstrative of how thin-on-the-ground copyright protection is relative to where creators want it to be (especially when considering what AI-generated art does to the industry). Many artists seem to think the protection is thicker, but here we see an example of doing a painting based on a photograph being sufficiently transformative.
- CrazyStat 4y agoIt's not the the painting was found to be sufficiently transformative, but rather that the photograph was ruled to be ineligible for copyright protection in the first place. I'm not familiar with Belgian copyright law so I can't really comment on how reasonable that ruling is. Under American copyright law it would be absurd.
- Galanwe 4y agoI don't quite understand the exact case that is being ruled here. "Copyright" is a concept from countries of "common law" (essentially the US). Most of Europe are _not_ common law countries, and have their own "author's right" systems with very different philosophies and applications. Copyrights are somewhat enforced in Europe as a matter of facilitating trades with the US by carrying over corresponding authorship protections. It seems the author here is shocked that US copyright law is not enforced verbatim by the rest of the world... No thank you. For most of Europe, author's right is a given, you don't need to apply for it and pay a fee. To me, the US has a very bad track record of legislation around patents and copyrights which is poisoning them. I would very much like it to be contained to the US and not spread elsewhere.
- piskerpan 4y agoAs an European, I don't see the problem with what's being argued here. The photo is art, as is, and it should be automatically covered by copyright. You can't download a photo and sell it. This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold.
- Galanwe 4y ago> This is a 1:1 replica of the original, "printed" by hand, presented as own, and sold. The ruling here does not contest that what was sold is a close replica of the original. What was ruled here is that the original author was not able to convince the tribunal that there was enough originality in the creation of the photograph to have it protected against copies in the first place. My interpretation from the article: - The law differentiates "skill" from "originality" - The author had to prove the originality in at least one aspect of the photograph (lighting, pose, post effects, palette, etc) - The tribunal found that the proof of originality was not convincing, and declared the work as "skilled" but not "original". - Thus the original photograph does not represent an original work of art, and can be copied freely. Here is what the tribunal had to say about the proof of originality that were presented: > Aucune précision n’est ainsi apportée quant à la composition et l’organisation de l’image, son cadrage, l’angle de prise de vue, le choix de la luminosité, le travail de réflexion du photographe, la mise en scène réalisée, la technique photographique mise en œuvre, etc., à part la remarque qu’il y aurait eu une ‚post-production‘ de la photographie, qui n’est cependant étayée par aucune précision quant aux travaux éventuels effectués et qui constitueraient une manifestation, voire expression de la personnalité de Jingna Zhang Apparently the arguments of originality provided by the photograph were vague and non convincing, essentially revolved around post effects, but these were not detailed enough. Apparently the defense was also able to provide numerous photographs from other authors that were close enough to reinforce the idea that it was not such an original work of art.
- powera 4y agoCopyright maximalists are a menace to society. An artist thinks that her unique genius means nobody else should be able to do "pose where model looks over left shoulder holding flowers". Humbug! That school of thought has forgotten that the original intent of copyright was to encourage creation, not to allow a cabal of rent-seekers to prevent it.
- kmeisthax 4y agoThis isn't copyright maximalism; she's suing someone who literally just made a painting of her photograph. If you can't sue over that, then you own basically nothing, and copyright is effectively abolished. Either... - Her lawyer fucked up drafting the lawsuit - The court horrifically misunderstood her claim, and will be smacked down on appeals - There's some context that has been intentionally omitted (but I doubt it - I mean, the claim fits into a single image and tweet)
- daxfohl 4y agoWeren't NFTs supposed to solve this?
- evancox100 4y agoWinner, you don’t deserve the downvotes.
- richbell 4y agoHow would NFTs have solved someone copying your work? For the sake of argument, let's say that Zhang also created an NFT of her photo. What's to stop Dieschburg from right-clicking it and publishing his own "NFT" of that work?
- abetusk 4y agoThis seems to me to be a pretty clear case of copyright infringement. As others have pointed out, looking at the picture side by side it's nearly a copy, with details of the neck shadow, hair placement and clothing kept almost verbatim. For some context, when Shepard Fairey used an AP picture of Obama as reference for the "HOPE" picture [0], consensus was that it was a difficult case to judge [1] and that Fairey might lose the case even though, in my opinion, it clearly fell under fair use. This is, of course, US copyright law which is different from other places around the world, so I wonder if a lot of this ruling has to do with it being in Luxembourg. [0] https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster [1] https://www.law.columbia.edu/news/archive/obama-hope-poster-lawsuit-settlement-good-deal-both-sides-says-kernochan-center-director https://www.law.columbia.edu/news/archive/obama-hope-poster-...
- jdkee 4y agoThe difference is that Fairey used a copy of the original Obama photograph in his work. Thus he violated the copyright of the photographer, Mannie Garcia. In Zhang's case, there is no evidence that a copy of the original photograph by Zhang was included in the derivative work. Therefore no infringement. At least under U.S. law. EDIT_ See https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf
- abetusk 4y agoI guess one way to look at it is, if the original work (the photograph) was in the public domain and the derivative work was created (the painting), would the artist who created the painting still be allowed to claim copyright over it. But I still don't understand about Fairey. How did he use the original? Even if he traced outlines to create his image from a photograph, it's still "creating a drawing based on a photograph".
- andirk 4y agoYour question encapsulates the issue: where do we draw the line? To see copyright laws whether the letter or the spirit of the law is left to pretty murky opinion maybe moreso than other case law. Traced a copyrighted photo, now it's new, but it's heavily derived from someone else's copyrighted IP, etc. What about Andy Warhol's Marilyn Monroe screenprints https://www.masterworksfineart.com/artists/andy-warhol/screen-print/marilyn-monroe-marilyn-1967-1-2/id/W-7933 https://www.masterworksfineart.com/artists/andy-warhol/scree... ? Original or copyright infringement?
- VanTheBrand 4y agoLots of posters here seem to fundamentally misunderstand the basics of copyright protection and derivative works. So many replies about the example here not being an “exact copy” and therefore “obviously” not deserving of protection. I wonder if maybe all the talk over the last 20 years about copyright infringement as it relates to digital piracy and “exact copies” has perhaps confused people into thinking that exactness is a necessary part of copyright infringement. It’s not. Some very common examples you see every day. When you make a book into a movie? You need copyright holder permission. When you take sheet music or lyrics and make a song recording? You need permission of the copyright holder. These aren’t exact copies they aren’t even the same mediums.
- ehhthing 4y agoAnd clearly the Luxembourg copyright system doesn't work that way? Maybe in Luxembourg, copyright only exists in much more limited situations? Whether something should or should not be copyrightable in the moral sense is a very different conversation than in the legal sense and I don't really see why we should be restricted into believing that things that commonly require licenses should always be that way.
- kuhewa 4y agoWhy just guess though? If the Law governing IP in Luxembourg only protected exact copies, the reasoning wouldn't have had to have been about the pose, it would have been that the painting wasn't and exactly copy of the photograph.
- ehhthing 4y agoI think the ruling is probably much more complicated than the simple statement that it was on pose alone. Whether or not the similarities between the original and derivative work meet the criteria for the Luxembourg equivalent of Fair Use is probably a better discussion. However either way, I see no reason to think about copyright in such a limited way. I don't think many people believe that copyright is only enforceable if two works are exactly the same. Rather I think they're simply discussing how inspiration and imitation is very common in art.
- Gordonjcp 4y ago> This ruling effectively allows anyone in Luxembourg to freely exploit... So roughly the population of Detroit, or Glasgow City?
- newaccount74 4y agoI think this reply from @mezoliad has the most plausible explanation why the court would rule in this way: > As a Luxembourger, I am sadly not surprised by this. Dieschburg's lawyer is a well known figure (and well respected by many) with a solid amount of anti-American and racist bigotry. > As an Asian-American woman, being up against a white Luxembourger, with the country's most prominent lawyer, on a Luxembourg court with a Luxembourgish judge, the outcome was almost inevitable. https://twitter.com/mezoliad/status/1600705700023656448 https://twitter.com/mezoliad/status/1600705700023656448
- aaaa4444 4y ago....but this reasoning/ruling now apply to all other portraits?
- zinekeller 4y agoThis is NOT the US (or any common-law jurisdiction) where it sets a precedent. Civil-law jurisdictions don't have a concept of precedents, they always look at a case based only upon law.
- SargeDebian 4y agoI think that’s not quite right. Precedents have a lesser role but are definitely relevant. My law classes in the Netherlands extensively covered important rulings as a way to interpret laws.
- deleted 4y ago[deleted]
- unglaublich 4y agoWhy? You fail to mention your assumptions about Luxembourg judges that underlie the "plausibility" and "unsurprisingness" of this outcome. Can you maybe share your argument with the curious reader?
- Sujan 4y agoHow does the copyright system in Luxembourg work? In Germany for example (this will ignore a lot of nuance!), there is no applying or denying of copyright. If you created something, you own the copyright. It is even in the German name: "Urheberrecht" literally translates to "right of the creator". It can not be sold. And then there is the second concept of "Verwertungsrecht" or "Nutzungsrecht", which defines who has the right to "utilize" something (often for monetary gain). That fundamentally also starts with the person that created something, but can be sold (either before or after the work is done, for example via a contract). As far as I know the US copyright system is very different from that, where you have to register or apply, and put (c) on things to show you own the right to moetize (this is even more vague, that is just the impression I got in the last 20 years of being on the internet). In Germany the big discussion then is around "Schöpfungshöhe" - "threshold of originality" in English maybe - that decides if something is even in this system or not. Is the discussion in the tweet about that really? If the work deserves to be in the system or not? If so, for "right of creator" or "right to utilize"?
- kweingar 4y agoIn the US you do not need to register copyright unless you intend to file a copyright infringement lawsuit.
- Sujan 4y agoImportant nuance, thanks for letting me know.. I was under the impression you only "got" the copyright by doing that. Do you "forfeit" anything by not doing it as soon/early as possible?
- nulbyte 4y agoCopyright in the U.S. is immediate upon creation of a work. GP is partially incorrect; you can bring a suit regarding an unregistered work. In such cases, however, you cannot claim statutory damages, but are limited to claiming actual damages (actual money lost or actual profit from the infringer). If the work is registered within the alotted time, you can claim statutory damages and attorney's fees. You can register within 1 month of learning of the infringement to protect your ability to claim statutory damages and attorney's fees. https://www.law.cornell.edu/uscode/text/17/412 https://www.law.cornell.edu/uscode/text/17/412
- Ekaros 4y agoNow even more fun question. Does the derivative work in this case have copyright? As original doesn't and it substantially copied it. So one probably would consider that new work can't be original and unique enough either.
- alpos 4y agoGiven that most of Jeff's pieces seem to be painted knock offs of other artist's photographic works, it seems to me that one could set up a cnc painting bot to copy nearly all of Jeff's work with minor variations at best and the Luxembourg court would have to consider that at least at legit as Jeff's own work. Perhaps some cheeky person with ready access to such machines might flood the market with clone's of everything Jeff does and see how he feels about his own source of income being so easily taken away. Just a thought.
- raverbashing 4y agoOk so this person is claiming the rights to all pictures with a similar pose and/or decoration? Sounds unlikely that would merit copyright protection. Edit: but that being said, the painted portrait is pretty much an exact (mirrored) copy. That definitely does not seem correct to me.
- karussell 4y agoIt seems Jeff Dieschburg copied others too: https://twitter.com/bekka/status/1532097291330281472 https://twitter.com/bekka/status/1532097291330281472
- moistly 4y agoOh, that cinches it: Jeff Dieschburg is a word I can’t use here without being banned. My hope is that he is drummed out of the art world, that he is repeatedly sued by the original artists, and that his name lives on in disrepute. What an absolute turd of a human being.
- Doorstep2077 4y agoInteresting to see how specific copyright can reach and how broad it can go in other cases.
- fxtentacle 4y agoEww looks like she's bending the facts a bit. The first issue here is that she never registered her original work with any copyright registry. It's $55 for 750 photos for the US Copyright Office, which is more or less accepted worldwide. (Also, she's living in the US and working there.) That leads to the second issue which is that it is now impossible to determine if the painting is a derived work off her photo, or if it is a derived work off one of the countless other images on the web that look pretty similar. (She can't argue that the artist should have know her photo because it wasn't registered) Together, she's relying on implied copyright (because she didn't register) and arguing that she's famous, so it has to be her photo. And to that, the judge replied that the photo is not unique enough to make that "it has to be my photo because I'm famous" argument work. Do the images look similar, like it's the same person? Yes, but that's likeness rights, which the photographer can't sue for. The photographer can only sue for unique aspects in the composition and I'd agree that it is a pretty generic model shoot with pretty generic decoration and a pretty generic pose. The women depicted in the photo could probably sue and win. But she didn't. This is only the photographer suing. More info: https://www.tageblatt.lu/headlines/affaire-dieschburg-zhang-pas-doriginalite-pas-de-droits-pas-de-plagiat/ https://www.tageblatt.lu/headlines/affaire-dieschburg-zhang-...
- Broken_Hippo 4y agoThe first issue here is that she never registered her original work with any copyright registry. It's $55 for 750 photos for the US Copyright Office, which is more or less accepted worldwide. (Also, she's living in the US and working there.) You don't have to register your art (including photos) to get copyright protection. Otherwise, poor people would get the screwed over even more - $55 is around a day's labour at minimum wage. Requiring registering just paves the way for companies to steal poor people's art and photos. Registering is completely optional, though it will sometimes help if you need to sue. There are other ways to prove stuff ownership, though.
- fxtentacle 4y agoYes, poor people are being screwed over. You lose a whole set of available remedies in court if you don't register "timely". It's about as optional as health insurance. You're not forced to do it, but if anything goes wrong, you'll dearly regret your decision. Also, she should have been suing to declare the painting a derived work of her photo. Drawing it was clearly transformative, so it's not a pure copyright infringement. But as a derived work, she would be entitled to receive revenue share from the painter. It's just that for that whole derived work thing to work, her photo needs to be registered first.
- prhrb 4y agoOk so what does she want to copyright? Her face?
- alpos 4y agoFlipping the question around exposes the court's bias towards their own. In this case the court claims this is an ordinary photo, not an artistic work; okay, that means one should easily be able to find hundreds to thousands of similar photos taken and disseminated in non-professional contexts. Image searching the internet through several search providers brings back only references to this case and more of Zhang's work. It should also mean that Jeff's pieces are not original art work, do not get copyright protection either, and are essentially art fraud. This ruling should open him up to getting sued by anyone who thought they were buying an original art piece, only to find after this ruling that they bought an average Joe's random photo, this should include the gov't supported exhibit, which should want to revoke Jeff's prize. With this ruling there really are not two ways about this. Either Zhang's work is original and Jeff copied it without asking, or Jeff's work is not original either and therefore isn't worthy of winning a prize or being sold as original art work.
- mordae 4y agoSure, let's forbid anything that closely resembles something younger than 140 years. That will incentivize everyone to create! /s Just abolism this censorship nonsense. Culture wants to be free.
- greggarious 4y agoReminds me of how my tour guide at Versailles alleged it was illegal to photograph the Eifel Tower at night. (Spoiler alert: I did it anyways, among other things.)
- deleted 4y ago[deleted]
- amelius 4y agoThat would make Disney's work non-copyrightable. All of those poses of Mickey Mouse et al. are not unique.
- photoGrant 4y agoSomething, something Sherrie Levine :)
- blagie 4y agoI will point a few issues with this whole discussion: 1) We have a Twitter thread, from one party, emotionally connected and clearly not unbiased 2) What the threat claims makes no sense. It might be correct -- court often rules in ways which make no sense -- or it might be misrepresenting things significantly. 3) Authors' rights are a cultural construct, and the extent and places protection extends depends on culture. The US has done a lot to push its own model of copyright on the world (and to educate kids that it's the only model of authors' rights and a human right). I would like to see more diversity and innovation globally here. I don't fundamentally see the court's decision as either correct or flawed without a lot more context and primary sources. My instinct is the same as everyone else's -- this feels like infringement -- but I'm situated in the same cultural context. My instinct with just a few more changes would be different. If the folds of the dress, arrangement of flowers, and strands of hair were not placed the same, I'd consider the new work a sufficiently new work to not be infringing. Fundamentally, I'm a fan of building off of other's work and various forms of "resampling," so long as the result is sufficiently derivative, unconfusing (e.g. can't be passed off or confused for the original artist), and doesn't compete directly with the original work. I support a very broad interpretation of fair use. I've also been in countries where copyright is ignored, and where it's draconian, and I can tolerate other perspectives.
- _cenw 4y agoThe US copyright model is for the advantage of rights holders (i.e. die Disney corporation), not individual creatives. Especially when many creatives do not work alone and contribute their output to a larger product (like a movie). Their inclusion as individuals seems almost incidental. In opposition to a place like Germany, where you can't ever fully reassign copyright and always retain some rights (Urheberpersönlichkeitsrecht), for instance to object to a use that reflects badly on you or to insist on being credited. Some of these rights should really be standard; the games industry for instance makes it a habit to strike people off the credits as punishment for leaving a project early or attempted unionizing (as attempted with Raven Software QA workers recently).
- throwaway5813 4y ago
- cthalupa 4y agoBizarre. I can see the argument that artwork or photography using the same pose is not infringing, and I've seen quite a lot similar poses used in photography and art over the years. But that's not the case here. Ruling that the photograph cannot be copyrighted because the pose is not unique is not something I have ever heard of occurring in any case for a Berne signatory until now, and I do not understand how that ruling is compatible with the fundamentals of copyright established within it, though I am a layperson and not a lawyer. There's a lot of people arguing about how the painting isn't an exact copy, but that's irrelevant - copyright is a lot farther ranging than just ctrl+c ctrl+v'ing something. It's true that something as nebulous as "style" can't be copyrighted, but I could not take the latest Avengers movie, animate it in black and white with subtitles rather than audio, and be free from infringing on copyright. The painting is clearly a derivative work, and if the original photo had copyright protection, the painting would clearly be infringing. But, bizarrely, this court appears to have ruled that the photo simply cannot be copyrighted, purely because of the pose of the model. If a unique pose is a requirement for a photograph to be copyrighted, then this renders the vast majority of portrait photography uncopyrightable. I can't imagine this ruling would be upheld upon appeal in most countries that have signed the Berne convention.