Copyright denied because the model’s pose is not unique • Hacker News Board

Re: Copyright denied because the model’s pose is not unique

#151

Post by autoexec » Mon, Dec 12, 2022, 5:13 AM UTC

layer8 wrote: post #140

autoexec wrote: post #8

I 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/…

It’s not just “influenced by the original”. They clearly just mirror-flipped the original image and photoshopped it a bit.

> They clearly just mirror-flipped the original image and photoshopped it a bit.

it's an oil panting on wood. Not a photoshop. Someone painted it.

Re: Copyright denied because the model’s pose is not unique

#152

Post by autoexec » Mon, Dec 12, 2022, 5:20 AM UTC

djur wrote: post #50

blondin wrote: post #3

not 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.

The flowers are arranged identically. The folds of fabric and hair are identical aside from a few trivial changes. It looks like a lightly photoshopped version of the original. Far too similar for chance.

It's not photoshop. It's an oil painting of a photograph, so of course it looks similar to the photo, but it also has several changes and it clearly took skill to paint. In fact it won some kind of award for how skillfully it was painted.

It's a combination of the changes and the new medium that make it transformative.

Re: Copyright denied because the model’s pose is not unique

#153

Post by autoexec » Mon, Dec 12, 2022, 5:25 AM UTC

esrauch wrote: post #123

debesyla wrote: post #16

Earlier quoted context omitted.

It's not a carbon copy and the changes aren't minimal - thus it's inspired, not copied. After all, copyright works for whole thing, not spare parts (technique, style or "idea" aren't copyrightable)...

Essentially any movie adaptation of a book can't be copyright infringement based on this being the bar; even cases that keep many lines of dialog verbatim end up just being detail similar to keeping the exact same folds of fabric at the bottom.

> Essentially any movie adaptation of a book can't be copyright infringement based on this being the bar;

I'd agree with that. A movie adaptation (with changes) should be allowed under copyright because it's clearly transformative and creative. Copyright should protect against reproduction without compensation, it shouldn't be used to prevent new artistic works from being created even when they are based on existing works. That's how I feel about it anyway, although sadly the law we have today in the US would disagree.

Re: Copyright denied because the model’s pose is not unique

#154

Post by fxtentacle » Mon, Dec 12, 2022, 9:07 AM UTC

Danin wrote: post #130

fxtentacle wrote: post #105

Eww 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 i…

If the court ruled that the work is not creative or unique enough to qualify for copyright protection, then why does it matter that the work was not registered with a copyright office? The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers. It's also fairly possible to demonstrate that it's a derivative work and that the artist would have had…

> The implication of this would be that foreign artists would have more legal protection and rights in Luxembourg than Luxembourgers.

No, the implication is that if you register your work for explicit copyright protection, you have more legal protection than the unregistered implicit copyright protection.

> As a nitpick, in this post you're saying it's a derived work but in a child comment you're saying it's a transformative work so it's not 'pure copyright infringement'.

Correct. Because it was transformed, it's a derived work.

> the court ruled that the photographer has no rights or protection under copyright law

The court only ruled that the photographer cannot stop the artist by saying this is a direct reproduction of her work, which it isn't. The court may well grant her a revenue share, but that's not what this trial was about.

> transformative enough to be considered fair use

Yeah, transformative is on a spectrum. If it is a bit transformative, you get a derived work. If it is a lot transformative, you get a derived work and the fair use exemption from paying the original artist.

Re: Copyright denied because the model’s pose is not unique

#155

Post by djur » Mon, Dec 12, 2022, 1:24 PM UTC

autoexec wrote: post #152

djur wrote: post #50

Earlier quoted context omitted.

The flowers are arranged identically. The folds of fabric and hair are identical aside from a few trivial changes. It looks like a lightly photoshopped version of the original. Far too similar for chance.

It's not photoshop. It's an oil painting of a photograph, so of course it looks similar to the photo, but it also has several changes and it clearly took skill to paint. In fact it won some kind of award for how skillfully it was painted. It's a combination of the changes and the new medium that make it transformative.

I can't agree. The changes are trivial[1]. An oil painting reproduction of a photograph is a derivative work, which makes this an unauthorized derivative work. The amount of skill involved in creating the reproduction is totally irrelevant, and a derivative work being transformative does not remove the original creator's rights over the distribution of derivative works.

It's worth noting here that the court in question did not address whether the painting is a derivative work, but whether the photograph itself was creative enough to earn copyright protection. The idea that it isn't is even more outrageous than the idea that the painting isn't a derivative work.

[1]: https://twitter.com/zemotion/status/1602206042523590658

Re: Copyright denied because the model’s pose is not unique

#156

Post by djur » Mon, Dec 12, 2022, 1:33 PM UTC

autoexec wrote: post #149

jasonboyd wrote: post #59

Earlier quoted context omitted.

It's clear that one is a mirror image of the other with minor Photoshop edits. I think it's clear to just about everybody. I don't believe you are arguing in good faith.

> It's clear that one is a mirror image of the other with minor Photoshop edits. You're wrong. I'd agree that minor photoshop edits would be a different story, but this is a painting. Oil on wood.

Would you consider an oil painting that exactly duplicated the photograph to be sufficiently different to not be covered by the original artist's copyright?

Re: Copyright denied because the model’s pose is not unique

#157

Post by djur » Mon, Dec 12, 2022, 1:36 PM UTC

wruza wrote: post #77

jasonboyd wrote: post #59

Earlier quoted context omitted.

It's clear that one is a mirror image of the other with minor Photoshop edits. I think it's clear to just about everybody. I don't believe you are arguing in good faith.

IANAPS, but I don’t think these are minor ps edits (or that it’s even ps) after overlaying the two and sliding the opacity. That’s a grey area no doubt, and the source of “inspiration” is clear, but you’re probably overtrivializing it.

I don't think the claim is that it's literally Photoshopped. It's a painting. It could be a painting of a Photoshopped version of the photo, or the changes could have been made while painting. There isn't any legal basis for distinguishing between digital and physical works here -- a copy is a copy, and a physical copy with alterations is as much a derivative work as a digital copy with alterations.

Re: Copyright denied because the model’s pose is not unique

#158

Post by djur » Mon, Dec 12, 2022, 1:58 PM UTC

fxtentacle wrote: post #105

Eww 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 i…

Luxembourg is a signatory to the Berne Convention, which requires automatic registration of copyright and forbids requiring formal registration. (The US was a late signatory to the Convention and arguably is still in violation.) Author's rights under Berne include an exclusive right to reproduction of the work or any derivative works.

The painting is obviously derived from the photograph. The defendant's lawyers didn't even bother to argue otherwise; anybody with eyes can see. I would also argue that a photograph that apparently can be turned into Turandot by the addition of a sword hilt and an earring can't be that generic.

The article you link was cited in the original thread and completely lines up with the photographer's claims. None of your additional claims from this comment are in the article, so I'm not sure why you're citing it.

Re: Copyright denied because the model’s pose is not unique

#159

Post by cthalupa » Mon, Dec 12, 2022, 2:12 PM UTC

Bizarre. 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.

Re: Copyright denied because the model’s pose is not unique

#160

Post by autoexec » Tue, Dec 13, 2022, 3:06 AM UTC

djur wrote: post #156

autoexec wrote: post #149

Earlier quoted context omitted.

> It's clear that one is a mirror image of the other with minor Photoshop edits. You're wrong. I'd agree that minor photoshop edits would be a different story, but this is a painting. Oil on wood.

Would you consider an oil painting that exactly duplicated the photograph to be sufficiently different to not be covered by the original artist's copyright?

I think if the painting were perfectly identical than it'd be just a reproduction and it should violate the photo's copyright, but even if such a thing were possible for a very skilled artist to pull off, I don't think that'd be something that happens very often. I'd guess that most artists would have a hard time not making changes.

We want artists to be protected from outright reproductions of their work, so that'd include minor low effort changes in photoshop made just to get around copyright. Artists should be free to create their own versions of existing works though. Copyright is supposed to encourage the creation of art after all.