Sunday, May 12, 2013

Photos and the Rationale for Copyright

There are, basically, two traditional rationales for copyright:

Economic: It behooves society to motivate the creative people to create things, by allowing them to reap the rewards of their creative labors.

Moral: The fruits of ones mental labor are as much yours as are the fruits of your physical labor. If you make a thing, then it is yours.

These are both perfectly fine reasons for creating some sort of notion of ownership of creative work, some notion of intellectual property and some legal machinery around doling it out, managing commerce in it, and protecting it. Both have a hidden assumption, which is that such fruits of creative labor are in fact creative and original. This is typically made explicit in the legal machinery.

There is no economic benefit to giving ownership of unoriginal intellectual property to the creator. In fact, doing so undermines the economic benefit. If I can simply change the name from Harry Potter to Gary Motter, J.K. Rowling's incentive to write drops quite a lot.

There is no moral right to unoriginal creative works, since the was no labor. Replacing Ishmael with Bob throughout isn't creative labor, particularly, and does not result morally in ownership of a new edition of Moby Dick.

At this point the attentive reader may have detected that we have a problem with photographs and copyright. The vast majority of photographs made today are nothing like original. It is, for instance, essentially impossible to take an original photograph of the Golden Gate Bridge. A photograph of the Golden Gate Bridge made today therefore enjoys no particular right to copyright. In fact, I submit that the copyright on such a photograph could be easily broken, should someone choose to go to the mat and take it to a judge.

Obviously there are original photographs still being made, ones with a copyright that would stand a concerted legal attack. There are also many that might or might not. Finally, there are some with a copyright that could certainly be broken. It is probably a safe bet that many photographs have a secure copyright that, in the light of the opening remarks here, it probably should not. The courts, in general, do and should tend to side with the author when there is doubt.

The real situation, however, is that essentially all photographs have usage rights which can be purchased for less than the cost of breaking the copyright in court. I can buy usage rights for stock all day long for pennies an image. I can buy usage rights from people on flickr for, well, not very much. Certainly a paltry sum when compared with the costs of a legal assault.

Essentially, we are in a situation in which some unknown percentage of the photographs made have a copyright which is a sham, but nobody cares to remove the curtain and reveal that the copyright is breakable. The courts have happily arranged a situation in which is is cheaper to simply live with a lot of silliness and outright injustice than it is to sort out any kind of just and reasonable truth.

This is true, of course, far more broadly than with issues of intellectual property.


  1. I wouldn't argue that there seem to be some issues here but I do take exception to the idea that a photograph shouldn't carry a copyright just because other people make similar photos. Why? Because I think it is wrong that someone should be able to use another's property just because it is like others in existence. Is it OK if someone took your car and used it overnight, when you weren't, because there are so many just like it out there? We can't copyright the subject, which generally is not an issue, but we can in cases like your example, copyright our decision as to when and from where to make an image, which is what makes it unique--even if it is "similar" to what others have done. If someone wants a photograph of the subject, they should create their own or buy/rent the use of one they find satisfactory to their need and pocket book.

    Copyright rules do have certain exceptions as to what can be copyrighted and that already includes a somewhat vague indication of a semblance of creative input. The only thing I "know" you can not copyright is a photograph of a 2 dimensional piece of art by someone else. There is not any copyright interest in such an image. You can copyright an image of someone else's sculpture for instance, but that does not mean you have the right to "use" it without violating the sculptor's copyright.

    1. Obviously, I disagree that, when someone makes a photograph which is in some essential way as someone else's pre-existing photograph, this new picture is entitled to copyright protection.

      I would make the argument here, except that this post is essentially that precise argument.

      I am ok with agreeing to disagree, though!

    2. Regardless of how efficiently we can enforce it, do you feel that it is then ok for someone to take a photograph I have made--which "they" deem is ordinary and redundant--and steal it and use it in their advertising or as content on their own website?

      How would that go if it was a print hanging on the wall at my house and someone did that? How is this not a double standard just because it is represented in pixels (which also take physical space) rather than in paper and chemicals or inks?

      What are we agreeing to disagree on here? That theft is ok as long as I don't think it isn't because of......?

  2. I am agreeing to disagree, it's not so obvious that you are. You're ranging rather far afield from the original point of this essay and, while you're free to say what you like, this rather different discussion isn't one I am interested in having right now.

  3. Your essay is about basic ownership rights no matter how you dress it up. How the law works and what we own are different issues. Unfortunately, maybe, is that Copyright law is the mechanism for the assertion of our ownership of our photography (I did here of one person who successfully sued in small claims court for a pirated use of an image, however, there is a question of legal jurisdiction in such things).

    The problem I see here is that you don't seem to acknowledge that regardless of what the photo is similar to, that you can have ownership rights to "your specific" version of an oft photographed object. (who is the arbiter of when it is or isn't similar by the way?) But, on the other hand, I doubt that you would argue that if you have a coil of generic copper wire--that anyone can produce that buys the raw material and the machine that forms it--that you don't have full ownership and can protect your rights in that ownership. I think you would agree that no one else can use that wire you own unless you give them permission to do so.

    Why is a photograph I create, generic or not, have less rights of ownership than that copper wire you own?

    Copyright is just the mechanism for protecting those rights.

    We might agree there are issues with the system, but I am not sure what a better system would be, especially with items that are much easier to "borrow" without permission.