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By Joel I. Rosenblatt, Attorney at Law
Mr. Rosenblatt, a Registered Patent Attorney with the U.S. Patent and Trademark Office, practices in the commercial law of technology and the Internet and the law of patents, trademarks, and copyrights. He is a Florida Supreme Court Certified Mediator, a Florida Bar Approved Mediator for Computer Law Disputes, certified as a Mediator and Arbitrator for the U.S. District Court for the Middle District of Florida and is admitted to all U.S. District Courts for Florida. Any questions or comments may be directed to Mr. Rosenblatt at (321) 727-7626; FAX: 727-8209 or by email to jirosenblatt@earthlink.net
Our Family Vacation
“The law is an ass,” as Charles Dickens said. He was dissatisfied with the legal process. While his dissatisfaction may have started with a misunderstanding, his reaction would not be unexpected, were he here now, given the complexity of the law and the difficulty of the U.S. Appeals Courts, to resolve common sense resolvable copyright dilemmas. An illustration is a case which made two trips to a U.S. Court of Appeals before a final decision. I have changed the facts to put the case on a conceptual level, in a way that challenges basic rights and that is intended to arouse an indignant reaction that holds the reader’s interest.
Imagine a family on quick tour of America, scheduling a one hour stop at Mount Rushmore, and then heading west. The family leaves the visitor center and assembles for obligatory photo with the Monument as background. Just then a stranger approaches, warning that to take a photo of Mount Rushmore, a royalty must be paid to the owner of the copyright on the first photo made of the Monument, and that the copyright not expire for another forty five years. The response of our family photographer were he or she a copyright attorney, would have been that his or her photo is different and under copyright law, each photo is sufficiently original to qualify for a separate copyright even where the differences are minor. That’s all well and good says the stranger, but any photo of the Mount Rushmore monument would then be a derivative work of my original copyrighted photo and a clear violation of the copyright law. That even stumps the copyright attorney and our family is last heard, as they proceed to Custard’s Last Stand (that’s an ice cream place), saying “that’s a national monument and public property. How can anyone be stopped from taking a picture?”
The answer is nobody can be stopped. As my father used to say, the answer is not the important part, it’s the reasoning that explains it.
This is a case for the application of the rule of copyright law.
As we know, copyright requires no more than originality. Photographs are always copyright able. To see how that works, imagine the hypothetical case of photographer A who sets up his tripod and camera in front of George Washington’s portrait in the National Portrait Gallery. With Gallery lighting always a constant, our photographer uses accepted rules of photography to make what is called a “white light gaussian” or full face shot where shadows, highlights, brightness, and contrasts, are constant with minor or minimal variations, from one photo to another, and where, as in this case, the subject, its position before the camera and the lighting stays the same.
As it happens, a gaussian photograph, call it photo #1 was taken for use in a series of advertisements, requiring uniformity as in a white light gaussain photo, so the image always appears uniform. While photo #1 would have been sufficient, the ad manager commissioned three more, from a different photographer and her photos 2, 3 and 4, became the interchangeable gaussian photos of choice for the advertisements. The consequence was that the creator of photo #1 lost royalties which now were paid to the photographer of gaussian photos #’s 2, 3, and 4.
An action was commenced by photographer #1 claiming photo’s 2, 3 and 4 were copies of his photo #1, an original work of authorship and protect able under the copyright law. As a defense, our photographer claimed photos 2,3, and 4, are sufficiently original, and deserving of copyright protection in their own right. However, photographer #1, replied that photo’s 2,3, and 4 were substantially similar to photo #1 and a derivative work which violated its copyright.
A word for the rule of law for copyright protection given to photos. The theory is no two photographs can be alike because of differences in camera position, lighting, subject positioning, film and camera. That’s why at the end of every sports telecast, the announcer says “this telecast (a video tapped event), is protected by the copyright laws of the United States,” or something like that.
But in this case of the gaussian photos’s everything is the same or nearly so and how can one made a gaussian photo of G. Washington in the National Portrait Gallery without producing almost exactly the same photo and running into the copyright of photo #1? A second question would be is it fair to deny to others the same right to use a natural treasure in the same way as photo #1 is being used. Remember our family in front of Mount Rushmore?
The Gordian knot of legal reasoning facing photographer #2, maker of photos 2, 3, and 4, was how could he get around the legal rule that copyright protected all photographs because all gaussian photo made of Washington’s portrait would appear identical.
Now the 2003 court had to find a way to apply the 1884 rule but avoid the impossible result that a formula photo like photo #1, could be protected from every subsequent photo made of the same subject with the same composition, like photos 2, 3, and 4.
While the answer to this same question, but with a different, but related set of facts, was as plain as the nose on the judges’ faces, its solution required two trips to the U.S. Court of Appeals for its resolution. Applying the court’s reasoning from the parallel case, the court would first reason that the gaussian photo #1, which by is definition, was made to a strict formula, which did not vary from shot to shot, was sufficiently original to be protected by copyright, given the Copyright Act's low threshold for originality generally and the minimal amount of originality required to qualify a photo. That opinion correctly applied 1884 rule of law to the 2003 gaussian photo, as it remained the correct rule of law and the 2003 court was stuck with it.
However, other court made laws are able to limit the bounds or scope of protection given to a copyrighted work so it does not protect any part of the work which does not qualify as “original expression.” That rule is known as “merger,” where the idea (not protect able) merges with the expression of the idea.
The other judicial invention is called scenes a faire and refers to stock or essential parts of any work which are well known or essential to any similar work and cannot be part of the original and protect able expression. Examples are the climax of every drama (the gunfight at the OK corral was one) or stock characters, as in villain or hero or damsel in distress. For an example of the stock parts of the well known and well practiced product shot, think of the straight ahead portioned ketchup bottle, the colorless, gaussian light casting no shadow or reflection and the clear illumination of the Heinz bottle’s trademark and label. And so any while light gaussian photo of the portrait of G. Washington, hanging under the set lighting of the National Portrait gallery, would not be protected against anyone else making the same photo.
These judicial norms raise the bar to copyrightabiliy beyond mere originality. As we said, every photo is original and is copyright able but the scope of its copyright , meaning what exactly in the photo is protect able and what is not, is limited by the merger and scenes a faire judicially made up doctrines creating a judicially enacted public domain preventing an originator from claiming every possible element in the work. To have it otherwise would devastate software development and prevent any new original screen play or musical composition from being performed without paying royalties for the life of the author plus 100 years. That’s too terrible to contemplate.
So where does that leave our family who, as law abiding citizens, would not consider violating the copyright law, even for a family photo. First, our stranger’s photo of Mount Rushmore is protected by copyright, but, under the 1884 rule of law, so would be the family photo. The next question would be, “is the family photo in front of Mount Rushmore a derivative work of the stranger’s photo as each has the common element of the Mount Rushmore Monument?” To answer that question, the rule of copyright applies the merger and scenes a fair doctrine to separate from the stranger’s photo what is protected by copyright from what is made public domain. There is only one Mount Rushmore and only one way to express it in a photo and that is to stand before it and take a picture. So much for merger. As for scenes a faire, Mount Rushmore is a stock and essential piece for anyone who might want a picture of the Monument for any reason and cannot be protected by copyright. So all our stranger gets is the limited protection of an identical photo with the exact same lighting, shadows, position, and highlights, and anything different is free and clear, the same for the family photo as for photo's 2, 3, and 4, of George Washington or for Heinz ketchup.
Stay Tuned for Next Month's Article!
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Joel I. Rosenblatt is state Supreme Court certified and available for mediation and arbitration. He practices as a registered patent attorney in patents, trademarks and copyrights. Specific areas of practice include commercial law related to electronics, computers, data processing, telecommunications, materials and mechanical engineering, the Internet and entertainment and in the development and licensing of technology and creative works. As Intellectual Property and Licensing Counsel for Fortune 200 corporations, he has acquired numerous patents for electronics and computer related inventions, and has prepared and negotiated design, development and distribution agreements for software, telecommunications, electronic technology, and creative works. As a logistics attorney, he has provided counsel and representation in the field of customs, logistics services, and in loss and damage claims.
Mr. Rosenblatt is available for mediation and arbitration in the fields of general law, intellectual property, entertainment, and technology law, and in logistics law and loss and damage claims. Emphasizing technology and the arts, he serves a wide range of intellectual property and commercial needs for individual and business clients. Mr. Rosenblatt, as a senior level attorney can provide clients easy access and quick turnaround.
Education and Professional Affiliations:
Mr. Rosenblatt holds a Bachelor of Electrical Engineering Degree from the New York Polytechnic University, an MBA from the Wharton School of the University of Pennsylvania, and a JD from the Catholic University of America Law School.
Mr. Rosenblatt is a Registered Patent Attorney with the U.S. Patent and Trademark Office and a member of the Florida and New York State Bars. Admitted to practice in the Court of Appeals for the Federal Circuit, the United States Court of Appeals for the 11th Circuit, the United States Court of International Trade and the United States District Courts for the Northern, Southern, and Middle Districts of Florida. Florida Supreme Court Certified for Circuit Court Mediation and approved by the Florida Bar as a Mediator of Computer Law Disputes. Mr. Rosenblatt has completed Florida Supreme Court Certified Arbitration Training and is certified as a Mediator and Arbitrator in the United States District Court for the Middle District of Florida. jirosenblatt@earthlink.net . |
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