Author Topic: Judge: stock photo not subject to copyright - the end of our business? (Read 7046 times)

Arnold · « **on:** December 23, 2017, 05:38 »

In a case between Canadian Masterfile and a Dutch car company a Dutch court has ruled that a particular stock photo is not subject to copyright because the photo is "not artistic" and lacks any "peronal touch". Although the verdict is about one particular stock photo of a temperature indicator on a dashboard, I'm afraid it will open the door to similar cases and that our work will eventually be outlawed. Am I too pessimistic?

For those who read Dutch, here is the link: https://www.nrc.nl/nieuws/2017/12/21/harde-strijd-om-de-saaiste-stockfotos-a1585902 [nofollow]

Noedelhap · « **Reply #1 on:** December 23, 2017, 08:08 »

The article states that this ruling does not mean ALL stock photos aren't subject to copyright, only in the case of this particular photo.

But I don't agree with the verdict. In my opinion, every photo is a photographer's creation, whether or not the subject is 'boring', or 'not creative enough'. It's created because the photographer pushed that buttonm so by definition it should be subject to copyright laws.

niktol · « **Reply #2 on:** December 23, 2017, 08:28 »

The problem with copyright on uber-trivial images is that it goes both ways. The very person who claims such copyright can be found to be infringing on images taken by some 12-year old who kept it on his dad's computer. The physical creation angle doesn't work. It could still be considered a way of "copying". The same way as copying work of known artists does not transfer copyright even if the "copier" used his own brushes. That's why it's called intellectual property, not button pushing property.

Again, what each of us thinks on the subject doesn't matter, there are laws which are different in every country, and it's up to a judge to decide what's infringement in each particular case.

As for ruining the business, well it might ruin the business of button pushers.

Hannafate · « **Reply #3 on:** December 23, 2017, 09:37 »

I can see the judge's point on some images. Shutterstock has accepted several images of clear sky. The photographer simply pointed their camera at a clear blue sky, and submitted the result. A blue rectangle. Should that really be copyrightable? Anyone can reproduce it. Are all of the clear blue sky photos infringing on each other?

If I were daft enough to submit such an image, would I be "copying" them?

ravens · « **Reply #4 on:** December 23, 2017, 09:56 »

Quote from: Noedelhap on December 23, 2017, 08:08

The article states that this ruling does not mean ALL stock photos aren't subject to copyright, only in the case of this particular photo.

But I don't agree with the verdict. In my opinion, every photo is a photographer's creation, whether or not the subject is 'boring', or 'not creative enough'. It's created because the photographer pushed that buttonm so by definition it should be subject to copyright laws.

I agree. ALL (stock) photos must be subject to copyright. They are a photographer's creation after all. How do you define "artistic" or "personal touch"? Where would you draw the line? These are all matter of personal opinion and taste which varies tremendously.

No way someone's personal taste can measure a legal right, such as copyright.

GraniteCove · « **Reply #5 on:** December 23, 2017, 10:21 »

So if I understand this correctly a Dutch judge ruled in favour of a Dutch company and the legal basis for their ruling was nothing more than a subjective personal interpretation of what constitutes artistic merit? Not only is this the height of arrogance it is a dangerous precedent which leaves us all in a position whereby we will not only need to prove that we are creators of a particular work but also that that work has artistic merit on a case by case basis. Not only is that ludicrous but it's also potentially financially ruinous. In the case of the image above no matter how mundane it may seem to be, the photographer made many choices conscious or otherwise to achieve the final product. It is the photographers work. Period. I don't understand how anyone can possibly argue that.

GraniteCove · « **Reply #6 on:** December 23, 2017, 10:42 »

Quote from: Hannafate on December 23, 2017, 09:37

I can see the judge's point on some images. Shutterstock has accepted several images of clear sky. The photographer simply pointed their camera at a clear blue sky, and submitted the result. A blue rectangle. Should that really be copyrightable? Anyone can reproduce it. Are all of the clear blue sky photos infringing on each other?

If I were daft enough to submit such an image, would I be "copying" them?

I think this comparison is a good one but if you dig a little deeper I dont think you would be copying another's work at all. Concept maybe - and that's another discussion - but in terms of copyright your otherwise indistinguishable blue sky would pixel by pixel indeed be unique and therefore protected. As it should be.

niktol · « **Reply #7 on:** December 23, 2017, 10:56 »

You cannot completely exclude subjective from this argument. It's intellectual property after all, it's intangible, hence subjective to some degree. If you take another area of intellectual property, such as inventions, to issue a patent one needs to have claims that are not only "novel", but also "non-obvious". Obvious to some may not be obvious to other. Otherwise any minuscule modification of anything well-known would bring about exclusivity on just about anything. You would not like to live in this world of rigid IP.

niktol · « **Reply #8 on:** December 23, 2017, 11:09 »

Quote from: GraniteCove on December 23, 2017, 10:42

Quote from: Hannafate on December 23, 2017, 09:37
I can see the judge's point on some images. Shutterstock has accepted several images of clear sky. The photographer simply pointed their camera at a clear blue sky, and submitted the result. A blue rectangle. Should that really be copyrightable? Anyone can reproduce it. Are all of the clear blue sky photos infringing on each other?

If I were daft enough to submit such an image, would I be "copying" them?

I think this comparison is a good one but if you dig a little deeper I dont think you would be copying another's work at all. Concept maybe - and that's another discussion - but in terms of copyright your otherwise indistinguishable blue sky would pixel by pixel indeed be unique and therefore protected. As it should be.

Well then, if it's the pixels that the law protects, I could easily download and start selling anyone's pictures. I can easily develop an algorithm that will replace a certain number of pixels turning someone's picture into mine. Then everyone's screwed.

However, in spirit the law protects author's originality, which of course is going to be subjective, but it's better that way because it makes more sense.

In this particular case the judge decided there is no originality to start with and nothing to protect.

obj owl · « **Reply #9 on:** December 23, 2017, 11:37 »

I think the judge wanted to be the judge and force his opinion on the court. It was the judgement of the company that used the image that should have been adjudicated. The company could of used any of thousands of images or sent someone to the carpark and get them to take a picture on their phone, but no they chose this one image, they must have thought it had value.

Shelma1 · « **Reply #10 on:** December 23, 2017, 12:08 »

Quote from: Hannafate on December 23, 2017, 09:37

I can see the judge's point on some images. Shutterstock has accepted several images of clear sky. The photographer simply pointed their camera at a clear blue sky, and submitted the result. A blue rectangle. Should that really be copyrightable? Anyone can reproduce it. Are all of the clear blue sky photos infringing on each other?

If I were daft enough to submit such an image, would I be "copying" them?

If it's that easy to create the image you need, shoot it yourself. Don't steal someone else's image, as simple and ludicrous as you might think it is. Clearly the image in question had value to the company in question, or they wouldn't have stolen it or used it.

I'll bet you the company in question would vigorously protect any image THEY owned the copyright to.

Take Audi. This year they "updated" their logo to be four simple black circles in a row overlapping each other slightly. Anyone could draw those four circles in 30 seconds. Audi paid big bucks for something you could scribble in no time. But I'm sure Audi would prosecute you for trademark violation if you used their logo, as simple and dumb and ludicrous as it might seem.

GraniteCove · « **Reply #11 on:** December 23, 2017, 12:13 »

Quote from: niktol on December 23, 2017, 11:09

Quote from: GraniteCove on December 23, 2017, 10:42
Quote from: Hannafate on December 23, 2017, 09:37
I can see the judge's point on some images. Shutterstock has accepted several images of clear sky. The photographer simply pointed their camera at a clear blue sky, and submitted the result. A blue rectangle. Should that really be copyrightable? Anyone can reproduce it. Are all of the clear blue sky photos infringing on each other?

If I were daft enough to submit such an image, would I be "copying" them?

I think this comparison is a good one but if you dig a little deeper I dont think you would be copying another's work at all. Concept maybe - and that's another discussion - but in terms of copyright your otherwise indistinguishable blue sky would pixel by pixel indeed be unique and therefore protected. As it should be.

Well then, if it's the pixels that the law protects, I could easily download and start selling anyone's pictures. I can easily develop an algorithm that will replace a certain number of pixels turning someone's picture into mine. Then everyone's screwed.

However, in spirit the law protects author's originality, which of course is going to be subjective, but it's better that way because it makes more sense.

In this particular case the judge decided there is no originality to start with and nothing to protect.

Nope. All you've done at that point is taken my protected work and altered it. Whether or not you've accomplished this successfully enough to pass an arbitrary subjectivity test is irrelevent. The copyright to the original is still mine - execpt the onus and financial responsibility is now on me to prove. The originality argument is moot in this scenario with the exception that a case could definitely be made for the first person to ever point a cameara at blue sky. All others following being derivative works. Something all of us are guilty of. Prior Art would be the term in your patent analogy. All of this of course is a huge sidetrack from the original question. The litmus test here should never be easily obfuscated by questions of conceptual originality or artistic merit. My photograph of a hamburger is just that. A photograph of a hamburger. Has it been done before? Yes. Millions of times. Sometimes even artistically. Can you use it? No, not unless I say so. The alternative for photograhers is just too risky. My subjective opinion.

YadaYadaYada · « **Reply #12 on:** December 23, 2017, 12:19 »

Here's why, the Dutch Supreme Court has ruled that to be considered a work, it should have its own, original character with the personal imprint of the author (HR 4 January 1991, NJ 1991, 608(Van Dale/Romme)). I'd guess the judge is just following the law, which I agree with most people here, is wrong. If you take a photo of a sky, it's your work. However stupid and plain that may be, it's an individual work. Sorry Hanna you have to tell me when something changes from just a stupid photo into art or something that can be protected. Where's the line?

In the article the judge decided, and in the sky example Hannafate decided. That's subjective and both are wrong. https://en.wikipedia.org/wiki/Copyright_law_of_the_Netherlands

Go ahead Darla tell me when something becomes art or creative work, and not just a person pushing a button on a camera. I'd like to know.

niktol · « **Reply #13 on:** December 23, 2017, 12:56 »

Quote from: GraniteCove on December 23, 2017, 12:13

Nope. All you've done at that point is taken my protected work and altered it. Whether or not you've accomplished this successfully enough to pass an arbitrary subjectivity test is irrelevent. The copyright to the original is still mine - execpt the onus and financial responsibility is now on me to prove. The originality argument is moot in this scenario with the exception that a case could definitely be made for the first person to ever point a cameara at blue sky. All others following being derivative works. Something all of us are guilty of. Prior Art would be the term in your patent analogy. All of this of course is a huge sidetrack from the original question. The litmus test here should never be easily obfuscated by questions of conceptual originality or artistic merit. My photograph of a hamburger is just that. A photograph of a hamburger. Has it been done before? Yes. Millions of times. Sometimes even artistically. Can you use it? No, not unless I say so. The alternative for photograhers is just too risky. My subjective opinion.

You are missing the point. The point is that the moment an objective law is passed, next day there'll be programs that will with mathematical precision alter any picture in such a way that they will pass the objective criteria. Heck, they are already out there, for free. Try to argue in court then that you are the only person who has seen a burger before if it's different by objective, set by law criteria. The only way to protect copyright is to allow some subjectivity in decisions.

By the way, I am not defending the judge's decision.

GraniteCove · « **Reply #14 on:** December 23, 2017, 13:08 »

Perhaps we are missing each other's points so I will try to be more clear. The Dutch case above would not have been a case at all if the objective standard for copyright infringement in any jurisdiction was based on a very simple precept that if you do not own it you can not use it without permission. Is that too simple?

niktol · « **Reply #15 on:** December 23, 2017, 13:13 »

Quote from: GraniteCove on December 23, 2017, 13:08

Perhaps we are missing each other's points so I will try to be more clear. The Dutch case above would not have been a case at all if the objective standard for copyright infringement in any jurisdiction was based on a very simple precept that if you do not own it you can not use it without permission. Is that too simple?

Look, I am not going to argue the judge's decision. I would not do it if it were me. But I guess they managed to prove there was no ownership attached to it. Then it's like breathing air, you don't own it but you can still use it. It can always be repealed you know.

BTW, I have seen some pretty disheartening rulings about ownership before, so that doesn't surprise me.

Pauws99 · « **Reply #16 on:** December 23, 2017, 16:57 »

But getting back to the question yes its way too pessimistic I doubt this will make any difference whatsoever.

YadaYadaYada · « **Reply #17 on:** December 23, 2017, 17:57 »

Quote from: Pauws99 on December 23, 2017, 16:57

But getting back to the question yes its way too pessimistic I doubt this will make any difference whatsoever.

It might in the Netherlands but if you saw my note it's based on a 1991 decision. Making no difference anywhere else is very likely. Still these are bad decisions for the future if the same continues and some judge can say whether his opinion is it's art, creative or original enough.

Dodie · « **Reply #18 on:** December 24, 2017, 03:03 »

I wonder if the judge would have ruled differently if the car company were the copyright holder.

YadaYadaYada · « **Reply #19 on:** December 24, 2017, 09:40 »

Quote from: Dodie on December 24, 2017, 03:03

I wonder if the judge would have ruled differently if the car company were the copyright holder.

I wonder if anyone follows links or reads what's written here? 1991 and it's the Netherlands not someplace else.

In 1991 the Supreme Court ruled that a creation had to have an ‘own, original character’ (‘Eigen, Oorspronkelijk Karakter’) and had to bear the ‘personal stamp of the author’ (Persoonlijk Stempel van de maker) in order to be eligible for copyright protection (HR 4-1-1991, NJ 1991, 608: Van Dale/Romme).

I think the judge and supreme court is wrong to deny the art creation that started this thread, but that's the Dutch. Happily the rest of the world, unless there's another stupid interpretation of the law, still protects us.

Quote from: GraniteCove on December 23, 2017, 10:21

So if I understand this correctly a Dutch judge ruled in favour of a Dutch company and the legal basis for their ruling was nothing more than a subjective personal interpretation of what constitutes artistic merit? Not only is this the height of arrogance it is a dangerous precedent which leaves us all in a position whereby we will not only need to prove that we are creators of a particular work but also that that work has artistic merit on a case by case basis. Not only is that ludicrous but it's also potentially financially ruinous. In the case of the image above no matter how mundane it may seem to be, the photographer made many choices conscious or otherwise to achieve the final product. It is the photographers work. Period. I don't understand how anyone can possibly argue that.

+ Pretty well covered it there didn't you. Not only is it arrogant but short sighted. From further reading they say inventions that are the result of limited choices are not protected. The case does not set a precedent, the interpretation has been in effect there since 1991. This will not topple the market and ruin our protection in the rest of the world and it hasn't in 16 years.

More reading on how the Dutch have no sense, not new, this one 2010. https://kvdl.com/news/copyright-still-has-its-boundaries-dutch-supreme-court-confirms-exclusion-of-technology/

OM · « **Reply #20 on:** December 29, 2017, 09:00 »

Funny how Dutch image thieves invoke the 'no artistic merit' thing in an attempt to avoid paying for the use of an image.

In my case (around 30 years ago) someone noticed that a popular tv show was using a poster that had been printed from a commissioned photo of mine as decor in a butcher's shop set. They may have used it in 10 episodes but I was certain that they used it in one.

I got a specialised lawyer on to the TV producers. The lawyer determined that the price for use without licencing was a total of DFl. 5000 (licence fee + 200% fee as fine). At first they came with the argument that the poster content was generic/amateur and of no artistic merit and that therefore they could just use it! I no longer had the original 6x9cm transparency material but I did have the Polaroids taken during the session. Confronted with these and the fact that it was a commissioned photo, they paid in full!

It's also funny that it's the 'royalties' from trade-marked/copyrighted wares and services which appear to be the basis for the majority of tax-avoidance schemes that the Dutch tax laws facilitate.

increasingdifficulty · « **Reply #21 on:** December 29, 2017, 09:49 »

Quote from: Hannafate on December 23, 2017, 09:37

...a clear blue sky... Anyone can reproduce it...

Not if you live in the UK...

YadaYadaYada · « **Reply #22 on:** December 29, 2017, 10:20 »

Quote from: OM on December 29, 2017, 09:00

Funny how Dutch image thieves invoke the 'no artistic merit' thing in an attempt to avoid paying for the use of an image.

In my case (around 30 years ago) someone noticed that a popular tv show was using a poster that had been printed from a commissioned photo of mine as decor in a butcher's shop set. They may have used it in 10 episodes but I was certain that they used it in one.

I got a specialised lawyer on to the TV producers. The lawyer determined that the price for use without licencing was a total of DFl. 5000 (licence fee + 200% fee as fine). At first they came with the argument that the poster content was generic/amateur and of no artistic merit and that therefore they could just use it! I no longer had the original 6x9cm transparency material but I did have the Polaroids taken during the session. Confronted with these and the fact that it was a commissioned photo, they paid in full!

It's also funny that it's the 'royalties' from trade-marked/copyrighted wares and services which appear to be the basis for the majority of tax-avoidance schemes that the Dutch tax laws facilitate.

Nice going!

Quote from: increasingdifficulty on December 29, 2017, 09:49

Quote from: Hannafate on December 23, 2017, 09:37
...a clear blue sky... Anyone can reproduce it...

Not if you live in the UK...

Please explain why not? I'm not in the UK and don't know the clear blue sky laws.

Hannafate · « **Reply #23 on:** December 29, 2017, 10:52 »

Quote from: YadaYadaYada on December 29, 2017, 10:20

Quote from: Hannafate on December 23, 2017, 09:37
...a clear blue sky... Anyone can reproduce it...

Not if you live in the UK...

Quote

Please explain why not? I'm not in the UK and don't know the clear blue sky laws.

Any sightings of clear blue sky should be reported immediately to the National Observatory for verification.

Hannafate · « **Reply #24 on:** December 29, 2017, 10:56 »

Quote from: Shelma1 on December 23, 2017, 12:08

I'll bet you the company in question would vigorously protect any image THEY owned the copyright to.

It's Shutterstock. They don't vigorously protect their contributors' work.

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Author Topic: Judge: stock photo not subject to copyright - the end of our business? (Read 7046 times)

Arnold

Noedelhap

niktol

Hannafate

ravens

GraniteCove

GraniteCove

niktol

niktol

obj owl

Shelma1

GraniteCove

YadaYadaYada

niktol

GraniteCove

niktol

Pauws99

YadaYadaYada

Dodie

YadaYadaYada

OM

increasingdifficulty

YadaYadaYada

Hannafate

Hannafate

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