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Copyright denied because the model’s pose is not unique

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

#71

Post by wruza »

fallinghawks wrote: post #25
glandium wrote: post #11

Earlier quoted context omitted.

How 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.

I agree, it is far beyond "inspiration". Next to zero changes: same type of flowers, identical thinness of straps, hair up in a loose bun with strands spraying in very similar locations, folds in the fabric carbon-copy identical. Even the eyebrow, with its slight heaviness on the straight part, is the same. Dude made her eye a bit more slanted, wow. This is saying anyone can flip, photocopy, and color someone else's…

Tbh, what I perceive as “art” in the original work is still unique and wasn’t copied into the reproduction. It’s a copy of hair, face and clothing configuration, which is non-unique and a strange subject for copyright. I mean this is obviously borderline, but still a subjective issue.

If you like analogies, it’s like some pro photographer found a place, angle and hundreds of other parameters to shoot in the nature, copyrighted the image, and then someone geoguess’d that exact place next day and took a pic with their iphone or google maps street view.

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

#72

Post by kuhewa »

ehhthing wrote: post #68
VanTheBrand wrote: post #61

Lots 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 exact…

And 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.

Why 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.

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

#73

Post by zinekeller »

ehhthing wrote: post #68
VanTheBrand wrote: post #61

Lots 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 exact…

And 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.

> And clearly the Luxembourg copyright system doesn't work that way? Maybe in Luxembourg, copyright only exists in much more limited situations?

The problem is that Luxembourg's copyright regime should be a lot more stricter than, for example, US (this ruling is significantly different from other Luxembourgish rulings). I actually thought that this is a US ruling at first glance.

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

#74

Post by Veen »

Galanwe wrote: post #32

I 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 pr…

> "Copyright" is a concept from countries of "common law" (essentially the US).

Is that what they teach in US schools? The common law originated in England and is used there and in many places that were influenced by the English justice system: the US, Canada (except Quebec), India, Australia, Israel and about a third of the world.

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

#75

Post by gnopgnip »

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/…

The case law in the US is favorable to the newer artist in many cases, the four factors of fair use would be in the newer artists favor for a one off piece of art based on a reference.

Like with http://www.artistrights.info/cariou-v-prince the works consisting of collages, with a guitar pasted over the original work was found to be fair use. In this case the transformative use was a bigger factor, but part of the work was exactly copied, not just derivative.

Leibovitz v. Paramount Pictures Corp is more similar to this case. But in Leibovitz while the poses were the same there were several other factors that were changed to heighten the comedic effect.

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

#76

Post by ehhthing »

kuhewa wrote: post #72
ehhthing wrote: post #68

Earlier quoted context omitted.

And 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.

Why 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.

I 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.

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

#77

Post by wruza »

jasonboyd wrote: post #59
autoexec wrote: post #56

Earlier quoted context omitted.

There are clear differences between the painting and the photo, multiple things were added and removed. You might not place much value in them, but that's purely subjective. I must place more importance on those changes than you do because I have a preference for the photo over the painting. Objectively, those changes do exist regardless of how we feel about them.

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.

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

#78

Post by kuhewa »

ehhthing wrote: post #76
kuhewa wrote: post #72

Earlier quoted context omitted.

Why 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.

I 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 enforce…

I'm not sure anyone is thinking of copyright 'in such a limited way' in this particular thread? the parent comment was regarding comments on this post implying or explicitly stating there isn't an issue because there isn't a material duplication.

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

#79

Post by low_tech_love »

pbhjpbhj wrote: post #17

The 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…

She 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.

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

#80

Post by VanTheBrand »

ehhthing wrote: post #68
VanTheBrand wrote: post #61

Lots 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 exact…

And 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.

The comments I’m talking about are not speaking about Luxembourg they are speaking (incorrectly) about the US and copyright in general. Also the Luxembourg system does work this way. In the case discussed here, they simply said the underlying work was itself not deserving of protection. Were it ruled deserving of protection, the derivative works would have been infringing.
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