Saturday, January 19, 2013

More on Harney v. Sony (UPDATED)

From Pitt's Mike Madison:

"The analysis is pretty straightforward:  (i) Photographs can be copyrighted.  (ii) This photograph is original enough to be judged copyrightable.  (iii) Most if not all copyrightable works can and should be separated analytically into original and therefore protectable elements, on the one hand and un-original elements (things that are copied from others, or things that are simple or trite, or things that are “facts” or “ideas” in copyright-speak), on the other.  (iv)  An accused infringer is liable only for copying or adapting or publicly performing or displaying original material without permission or excuse.  (v) Sony and the other defendants clearly adapted the plaintiff’s photograph without permission, but they adapted un-original parts on the one hand and copied too little of the original parts on the other."

In the comments James Grimmelmann predicts the case "may well enter the copyright teaching canon: it does a good job walking through the core issues of originality, filtration of uncopyrightable elements, and similarity of expression."

Earlier post here.

UPDATE:  My friend, copyright guru Bob Clarida emails:  "It's a fascinating case on human-interest terms, and it makes the copyright issues really clear: you can copy something very closely, but you don't infringe unless you copy protectable elements. Everybody gets that, rationally, but to see these pictures really is worth many thousand words."