Icons Gone - Photography of Landmarks to be Prevented Through Copyright?

Memories are an important part of life, especially when it comes to travels to far-away lands or places, filled with culture, icons and landmarks that dot human history's timeline. As an avid traveler, this writer has taken his share of photos, both digital and of the physical, film variety, and often looks back at them with fondness and nostalgia. Pictures also form a part of the fabric of visual heritage of different cultures, and their importance cannot be overstated. Nevertheless, as a part of the InfoSoc Directive's implementation report, specifically relating to Article 5 of the Directive, any EU Member State could introduce restrictions to rights conferred in Articles 2 and 3 of the Directive.

To expand on this a bit more, the Freedom of Panorama enables individuals to take pictures of sculptures or other permanent installations and publish them without a need to consult the original creator or architect to do so. Currently the legal landscape for Freedom Of Panorama is very scattered, with some countries in the EU allowing all uses of such pictures (some with certain limitations, such as non-commercial use), while others, such as France and Italy, allow for no publication of images of this nature. Arguably the ability to publish one's vacation photos should be a 'right' in itself, with potential restrictions on commercial utilization being a viable option (although, one can imagine, costly to enforce effectively).

Frank was a savant in monument photography

In the proposed amended report put forth by Julia Reda (with the initial report discussed on this very blog here) Freedom Of Panorama was curtailed somewhat, as a recommendation set forth that "...the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them". Ms Reda's initial report had a very different view, proposing that photographs of such places would always be permitted. This writer would promote striking a balance between the allowance of sharing photographs with their commercial utilization with no licence contribution. Arguably, enforcement and ensuring that all images were actually taken for the commercial purposes would be challenging, and potentially nigh impossible, yet it still remains an important consideration in this context. People should be able to share their vacation photos with no need to seek permission, but should not be able to sell those images as postcards, for example, willy-nilly.

The measure has since been rejected, which is a great development; however, one has to note that the resolution is non-binding, potentially leaving the door open for the restriction of Freedom Of Panorama in the future. This writer doubts any substantial restrictions would ever be introduced, and even if they would be, their enforcement would be their downfall. Online services like Facebook and Picasa would have to restrict the displaying of photos that would infringe on this potential provision, bearing the brunt of the enforcement of any takedown notices from subsequent rights' holders.

This discussion surrounding the Freedom of Panorama highlights the persisting importance of copyright in everyday life, even regarding mundane, more obvious 'rights'. Should a restriction be implemented monuments around the world would probably have stewards requesting payment after a photograph is taken, affecting the magic of amazing sights that people have wanted to see on their journeys. Nevertheless, as the measure has been rejected it seems highly unlikely, but this writer will follow any developments with interest.

Source: The Times

Monkey Business - When Copyright and Simians Collide

The law and the world surrounding it can often be dry and, quite frankly, boring to those who don't love it as most of us working within the legal profession. However, sometimes a topic comes through that permeates that misconception and brings the law and its impact into the discussion at large, often through more unconventional events. In this vein a question can be posed: can an animal own the copyright to a work? This writer for one had never considered this and found himself pondering it a bit longer than I would like to admit. Due to this extended contemplation this answer should be shared for those interested in the implications of animal artistry and copyright.

This issue came to light after an image of a macaques taking a 'selfie' was spread around the Internet, springing up a discussion of both copyright and whether the trend of the 'selfie' has well and truly gone too far. The photograph was taken with a camera which the monkey appropriated from David Slater, a nature photographer in his own right. After his acquisition of the camera the monkey took several pictures, a few of which turned out quite fantastic and display the monkey grinning and staring at the camera. The images were shortly thereafter uploaded to Wikimedia, and have remained there since as freely usable images, with Wikimedia firmly contesting any and all assertions of copyright in the pictures and argue they are in the public domain. As posed above the question still stands: can this monkey own the copyright to its 'selfie', or can Mr. Slater claim the rights over the picture even though he did not take the picture himself?

Rick wanted to ride the animal selfie fame train as well

Under the UK Copyright, Designs and Patents Act 1988 a work is only protected by copyright if it is created by an 'author', defined as "...the person who creates [the work]". Arguably, at least on the face of things, the monkey will have no rights in the pictures as animals are not 'persons' within the meaning of the Act, making the work ineligible for copyright. Although Mr. Slater owned the camera and potentially set up the photo he still does not own the copyright for the work as he himself did not take the photograph. Sometimes the final piece of the puzzle is the most important, especially in intellectual property law.

In the United States there is no real definition of an 'author' under US Copyright law, leaving the matter, on the onset, in limbo. However, through the guidance of the United States Copyright Office's Copyright Compendium, the term 'authorship' used in the US legislation "...implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable", and that non-human authors such as monkeys, therefore cannot hold the copyright to a work.

The photographer has since argued that the monkey "...was [his] assistant", potentially causing a case of joint authorship in the work or even affording the rights to Mr. Slater outright. Through his own admission Mr. Slater "...set the camera up on a tripod, framed [the shot] up and got the exposure right", giving the final shot to the monkey itself. Right from the start one has to be slightly incredulous about Mr. Slater's assertion here, and with no evidence bar his own word, as the monkey has refused to comment on the matter, his presentation of what happened has to be taken with a pinch of salt. Should he have effectively directed and set out the shot for the monkey he could potentially claim authorship, as framed by Brad Newberg: "If the photographer actually developed it in a certain way, made some tweaks, used some lighting to make some original choices, and said essentially 'Look at my collaboration with this monkey,' then he would have had some part of the creative process", and could potentially claim the rights to the work. In the end this would be a matter he would have to argue in court, and would be hard-pressed to do so.

So far the monkey's picture has lost Mr. Slater over 10,000 pounds since 2011, and clearly presents him with an incentive to pursue the matter further, especially due to the notoriety of the case at the moment. This writer for one would absolutely love to see the argument go into litigation and hopes Mr. Slater will pursue the matter further, if not just for the legal profession's enjoyment. The case would decide the rights of dozens of animals and who knows, maybe one of them will be the new big thing in nature photography.

Source: Ars Technica

Amazon Patents Photography on White Background - Or Did They?

Some times patents can lead to mass confusion as to their application and capability to prevent normal, everyday activities from regular citizens. More often than not these have very little effect on the Average Joe, but can impair small and up-and-coming businesses trying to break into an area heavily controlled by patent owners. In this context patents are a double-edged sword; they both enable innovators, both in technology and techniques, to protect their inventions, but they can also cause a field to be nearly impenetrable for those upstarts, hindering the creation of new small businesses. Arguably this is an act of balancing both interests, but every so often new patents surface which create potential controversy, something which the big online retailer Amazon recently faced.

Amazon's patent showcases truly unattainable standards of beauty

The patent in question was Patent 8,676,045, granted some 4 days ago, through which Amazon was given the patent over a very specific photography studio arrangement. Roughly explained this setting encompasses a white cyclorama as a background in front of which there are lights shining onto the background. Then there has to be a platform on top of which the subject of the photograph is placed, be it a human or an item, and in front of this the device which takes the photograph, and finally behind the device is a light shining onto the subject. What makes the patent even more specific are the settings which the camera has to have when taking the picture: "...[the device has to be] equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6". Although, on the face of it, the patent seems like it could be used against hobbyist and professional photographers alike, the matter is not that straight-forward.

What makes the patent highly irrelevant to most photographers is just how specific it is. Clearly Amazon seeks to protect a method of photography it intends to use for its own purposes, potentially to take photos of items being sold on their website. This is why the patent is so specific, and should it have been more general it probably would have been rejected by the USPTO. Most photographers will not use an exact replica of Amazon's set-up, and can actively avoid it now that the patent has been accepted and published. Although it has created an outcry in the photography community, this can be argued to be for naught.

In addition to its specificity the patent would be very hard to enforce against those who would use the same or a very similar set-up. This was explained well by Peter Thorniley: "[h]ow can you distinguish an image created through their [Amazon's] process, from an image created in another way, to which some post-production has been applied? I am not sure it would be immediately obvious". Arguably Mr. Thorniley is right, and it seems highly unlikely Amazon would even pursue the matter against your typical photographer, as the investigation into their photographs and the method through which they had been produced would consume both money and time. What was also mentioned by Mr. Thorniley, and this writer agrees, is that the patent would most likely be used against industrial producers of photographs or even other online retailers. Pursuing these entities would make sense monetarily and protect Amazon's interests in how their products are displayed in their pictures.

As one can see patents can often be misconstrued, or even seen as threats. Certainly a level of healthy skepticism is good to have, and some patents should be scrutinized or even challenged, but more often than not patents will not hinder the practices of every day people or small-time professionals. Should Amazon's patent cause any issues to individuals or businesses it probably will be challenged in court, and the existence of prior art in this particular set-up can be said to be near certain. Chances are this patent will quietly slip into Amazon's extensive patent portfolio, so no need to cancel your Christmas photos this year in fear of infringement.

Source: TechDirt