Meshwerks vs. Toyota extends "lack of original creativity" concept to exclude copyright of wiremesh renderings

Yesterday I mentioned on the ning Museum3.0 discussion board that US courts have ruled that a digital reproduction of a 2-D work of art in the digital domain is essentially noncopyrightable. One of the members from Australia replied that she had never heard of this ruling before. I pointed out that I was referring to Bridgeman Art Library Vs. Corel Corp. and Googled this ruling to get a link for her to read more about it. I found that someone had posted information about the ruling on Wikipedia. I was surprised to read in the Wikipedia Article that another ruling, Meshwerks vs. Toyota, has extended the "lack of originality" concept to include wireframe renderings of existing three dimensional works as well.

The article also points out that UK museums continue to claim copyright but these copyrights would be essentially unenforceable for images used on a website hosted in the United States. The US courts essentially find the notion of "slavish copying" trumps the UK notion of "sweat of the brow".

I personally agree with the US ruling. If museums restrict access to public domain art by prohibiting visitor photography, the concept of public domain art is destroyed. Copyright would then have nothing to do with supporting creativity but bastardized into law enforcement for commercial activity based simply on possession of artistic work.

Inspired by interview with Lawrence Lessig

A friend recently sent me a link to Charlie Rose's interview with Lawrence Lessig. Professor Lessig has written a new book entitled "Remix" about the new hybrid economy between the sharers of the Web 2.0 environment and online commerical interests. He points out how such collaboration can be used to end the dependence of politicians on big corporate lobbyists - much the same way that Barak Obama did in the generation of money for his campaign.

He spoke very admiringly of the value of such resources as Wikipedia and how the energy of sharing economies can be just what is needed to infuse enthusiasm into economic ventures in the online commercial environment. He pointed out, though, that commercial interests need to gain respect for the intelligence and creativity of those engaged in producing user-generated content. He mentioned that people like George Lucas, who created a remix studio with Star Wars images and clips but claims copyright to any material produced by visitors - is an outdated "Hollywood mogul" approach and does not show proper consideration to the collective intelligence of the online community. I, personally, find it ironic that someone who is so adamant about defending their own copyright is so willing to rip off someone else's.

Recently I was reading about YouTube's problems trying to negotiate partnerships with the major studios because the Hollywood studios were disdainful of YouTube's millions of "amateurs" and how their user-generated content is viewed as cluttering up the YouTube site. I had also just read about a new feature YouTube has added called video annotation that includes the ability to link videos into a unique narratives. So, I wrote to YouTube and suggested they approach the studios about offering a remix studio containing clips of Creative Commons noncommerical-licensed clips for use in production of mini-choose-your-own-adventure type videos or alternative trailers using the new video annotation feature. All derivatives would not then compete with the studios commercial offerings, because of the noncommercial rights provisions, but would provide hours of creative enjoyment to site visitors, who in turn would be exposed to studio advertising for much longer periods while working in the remix studio than they would be simply viewing clip after clip of content. This would turn the demographics of typical YouTube site visitors to a definite advantage to the studios and a vibrant alternative to passive viewing of full length features on Hulu.com. Besides, I know I would rather watch a full length feature streamed to a Netflix device connected to my big screen TV than slouched in my chair in front of my computer in my home office alone.

You will need some time to watch the interview with Mr. Lessig as its 38 minutes long, but I think it is worth every minute of it!

http://www.charlierose.com/view/interview/9618

Music Publisher Association joins copyright suit against Google

Why am I not surprised???

English soccer's Premier League and music publisher Bourne & Co said Monday that eight more parties have joined their lawsuit charging Google and its YouTube online service with deliberately encouraging copyright infringement.

The new parties include the National Music Publishers' Association, which is the largest U.S. music publishing trade association, the Rugby Football League, the Finnish Football League Association and author Daniel Quinn.

Video programming owners have teamed up against YouTube, charging the top online video service with encouraging copyright infringement to generate public attention and boost traffic to its site.

Google has said it is abiding by existing law that protect Internet services from being liable for what is on their networks so long as they respond promptly to complaints.

Content Makers Are Accused of Exaggerating Copyright

This is a definite switch in viewpoint. It's particularly ironic since I've had such a struggle getting Corbis (Microsoft) to recognize my right to sell images I have taken of public domain artwork!

"An association of computer and communication companies, including Google, Microsoft and Yahoo, on Wednesday accused several professional sports leagues, book publishers and other media companies of misleading and threatening consumers with overstated copyright warnings.

In a complaint to the Federal Trade Commission, the group, the Computer and Communications Industry Association, said that the National Football League, Major League Baseball, NBC and Universal Studios, DreamWorks, Harcourt and Penguin Group display copyright warnings that are a “systematic misrepresentation of consumers’ rights to use legally acquired content.”

The complaint alleges that the warnings may intimidate consumers from making legal use of copyrighted material, like photocopying a page from a book to use in class.

“It is an attempt to convince Americans that they don’t have rights that they do in fact have,” said Ed Black, the association’s president and chief executive. “This is part of the larger context of what should be and what are proper rules for copyright in an Internet age.”

The complaint asks the Federal Trade Commission to take remedial actions against content owners, like ordering them to provide a more accurate copyright warning, and to assist with efforts to educate the public on their rights."

Lulu offers image marketing tools without Corbis hassles

I was excited to discover this week that Lulu.com now offers user storefronts for selling images - both for download and art prints (with Lulu providing the matting, framing, and shipping). Their interface is pretty intuitive and offers the ability to set individualized copyright selection (Since I offer noncommercial use for free up on Flickr, I select Creative Commons Attribution rights on Lulu to provide commercial use for a fee). It also lets me specify the attribution text, automatically informs me what print size the resolution I have uploaded will support, lets me enter a detailed description, and provides extra art print options for purchasers if I have selected that distribution option.

They also have calendar templates available and I have several ideas for calendar themes I want to design. I also took advantage of their Live Help Chat interface to help me with my first product offering. The only thing that confused me a little is that when I clicked on the Set License button on the Licensing screen after I had already input my desired price, the interface took me to another layout for me to choose from additional rights options and deleted my pricing. I have now learned to click on the Set License button first, then select my license (in my case I must go to still another screen to choose Creative Commons Attribution), then enter my pricing information and click Save and Publish.

One other thing to be sure to do is to set your remission options in your account settings. If you don't set any remission options, Lulu will donate your revenue to a charity. I think they should automatically take you to the remission set up screen the first time you publish a product but they do not. It's up to you to remember to do it. However, it's still a great service and I won't even bother with SnapVillage anymore.

Today, I noticed that Lulu has signed an agreement with Getty Images to allow LuLu creators to use licensed images from the Getty Stockbyte, Digital Vision and Photodisc collections and Lulu will automatically add the license fee to the cost of the project much like they do with the matting and framing costs.

It's a way of integrating original content with licensed content that's long been needed:

"Creators of all sorts, from companies to authors, to hobbyists, to non-profits have been looking for higher quality images to incorporate into their creations whether these are technical manuals, novels, photo books or calendars. Our partnership with Getty Images will empower creators to not only have access to this content, but to use it to make their creations more marketable." - Bob Young, Lulu.com CEO

I also noticed that you can get product specific "Buy Now from Lulu.com" buttons similar to the Amazon associate product-linked icons like this:

Terrific job, Lulu.com!!!!

More on Property Releases

This morning I found a reference to the PROPER use of property releases:

"In some cases, you'll need to obtain a release for using pictures of places. You may find this odd -- after all if a building can be viewed publicly why is permission required to use an image of it? Over the last few decades some buildings have earned protection under both trademark or copyright laws or both. Trademark law will protect a building's appearance under very limited circumstances. If a distinctive-looking building is used to signify a business's services, then you cannot use an image of that building in a manner that will confuse consumers. For example, the Sears Tower in Chicago functions as a trademark, and if you intend to use it in the foreground of an advertisement, permission should be obtained from the Sears Company. Use of the building's image for informational purposes, such as in magazine article, does not require permission.

Is permission needed to use the image of a trademarked building on a postcard or poster? That issue arose when a photographer sold images of the Rock and Roll Hall of Fame. A federal court of appeals permitted the use of the trademarked building on posters and did not consider it to be trademark infringement. (Rock and Roll Hall of Fame v. Gentile, 134 F.3d 749 (6th Cir. 1998).)

Copyright protection also extends to architectural works, specifically for architectural works created after March 1, 1989. However copyright protection also has limitations. A release is not needed to photograph a building or property visible from a public place. However, permission is needed to photograph and reproduce images of a building protected by copyright and not visible from a public place. Entering private property to photograph a building or related private property may also trigger a claim of trespass. To avoid such claims, photographers, publishers and filmmakers use a property release, sometimes known as a location release." - Stanford University Copyright and Fair Use Overview

Take that Corbis!

Then I found an ultra-conservative usual legal eagle approach described in an article on the ASMP website:

"

The whole subject of property releases is filled with urban legend, assumption and myth, along with a bit of actual law. As you know, using a person’s likeness for trade or advertising purposes requires a model release. That is because a person has a reputation to protect, a right of privacy and (in some states) a right of publicity. Property has none of these rights. So why should you go to the trouble to get a release?

It’s a good question, but one that requires a complicated answer. ASMP has never seen a statute or a legal case that requires a release for property. The recommendation that you get one is based upon two legal theories.

Below, we use a house as the property in question. Remember that the theories can apply to property other than real estate, such as pets, cars, works of art and other personal property.

Association. The first theory is that a person’s identity might be connected to the property. Take a picture of a house and use it in an article about drug users, and the owner might get angry enough to sue. Why? because everyone on the block knows whose house it is, and, since the house is not actually connected with drugs, the image was used out of context and paints the owner in a bad light. If the owner sees the use of the image as defamation of character, a lawsuit might be the response.

Conversion. The second theory is that there is an offense called conversion, which means that you used another’s property to your own personal gain without the owner’s permission. It is a bit like copyright infringement, which covers intangible property, except it covers tangible property. If I rent out your house while you are away without your permission, I have converted it to my personal gain. That is conversion. The question is this: Is it conversion if I rent out a picture of your house for an advertisement without your permission? The picture of your house is not your tangible property. Is the photo of the house the equivalent of the house (at least for these purposes)?

We know of no case that has ever settled those kinds of questions. ASMP advises that property releases be acquired whenever possible because we don’t want to see you be the test case. - ASMP Property and Model Release Tutorial

If the courts should ever uphold a claim of conversion about public domain artwork it will totally destroy the rights granted to the public by legislation defining public domain work. Corbis as the sponsor of SnapVillage may decide to require property releases where none is actually required by law but this action will defeat the stated purpose of their website as a site for amateurs and semi-professional photographers to sell their work. People should not be held liable for laws that don't exist yet (and hopefully never will!)

SnapVillage use hampered by Corbis corporate view of reproduction rights

After reading about SnapVillage, a new stock photography site sponsored by Microsoft and Corbis, I uploaded five of my images over a week ago, three of 16th century sculptural artwork displayed on public property in Florence, Italy including the sculpture of Hercules battling the Centaur Nessus created by Giovanni Bologna in 1599 (at left), one of a fresco adorning an exterior surface of the Villa Giulia in Rome constructed between 1551 and 1553 and now the National Museum of Etruscan Art owned by the Italian government, and one modern bronze sculpture of Benjamin Franklin purchased by the city of Santa Barbara for public display along a pedestrian walkway.

After a long wait for review, I received notice from SnapVillage that they were requiring property releases for all but one of the images. Their viewpoint is apparently that simple ownership of a piece of public domain art somehow grants the present owner of the work the right to "sell" or "grant" the right to create a derivative work (photograph). This is in direct opposition to the current copyright provisions that place such work in the public domain. I guess I shouldn't be surprised. Corbis (aka Microsoft) uses this approach as a rationale to charge publishers hefty sums to use their images of such art. However, if their purpose, as stated in a recent New York Times article, is to capitalize on the vast number of images currently being produced by so-called amateurs or semi-professionals because they fear their core business will be cannibalized by them, they need to abide by current copyright laws and not try to enforce policies developed by corporate marketing interests that do not have the weight of international law.

Copyright was originally instituted to encourage the creativity of artists and creators, not provide a capital asset for business interests who acquire the work. Trying to transfer the copyright from creator to owner is a travesty of the original intent of the law.

Key legal points:

Under the Berne convention, the minimum duration for copyright protection is the life of the author plus 50 years (Art. 7(1)).   Signatory nations may provide longer durations if they so choose.  

Three of my images were taken in Italy, a signator of the Berne convention, as is the United States.  Italy since joined
the European Union.  To commonize the application of copyright laws in its member nations
the EU enacted Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of
copyright and certain related rights (codified version)[1]

"In order to establish a high level of protection which at the same time meets the requirements of the internal market
and the need to establish a legal environment conducive to the harmonious development of literary and artistic creation in the
Community, the term of protection for copyright should be harmonised at 70 years after the death of the author or 70 years after the work is
lawfully made available to the public, and for related rights at 50 years after the event which sets the term running."

It further states:

In the case of anonymous or pseudonymous works, the term of protection shall run for 70 years after the work is
lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, or if the
author discloses his identity during the period referred to in the first sentence, the term of protection applicable shall be that laid
down in paragraph 1.

The images I took of the 16th century sculptures are far beyond the maximum time period of copyright protection for such works. Although ownership to the sculptures does not convey any copyright, the owner of the works (the Ufizzi Gallery) has further chosen to display the works outdoors in a public plaza. Therefore, they do not control access to the works with any implied rights by grant of access.

For Corbis to insist upon a property release is ridiculous. If Corbis continues in this interpretation, they deserve to suffer the cannibalism that they fear.

SnapVillage to offer hosting services for Amateur/Semi-pro stock photography

This article caught my attention. With my image archive growing to over 12,000 images, I am accumulating quite a large resource that has some commercial value. I license my images for free use for non-profit purposes but typically retain the commercial rights. I had written to Google urging them to roll out a service within Flickr that would enable those of us that wished to engage in commercial sales to sell commercial rights with built-in links to Paypal for payment but I hadn't heard anything back from them. Maybe Microsoft/Corbis' entry into the market will nudge them in that direction. In the meantime, I set up an account on SnapVillage and as an experiment uploaded five quality images to see how things work out with them.

Recognizing the growing market for inexpensive online photographs, Corbis, the online stock photo company founded and owned by Bill Gates, plans today to introduce a Web site that allows anyone to upload photographs for sale.

Images scheduled to be available beginning today on SnapVillage.

Called SnapVillage, the site is the latest entrant into the realm of so-called microstock agencies.

Microstock sites take advantage of a phenomenon known as crowd sourcing, whereby thousands of amateur and semiprofessional photographers submit pictures and charge as little as $1 an image. Unlike some other microstock sites, SnapVillage will allow its contributors to set their own prices, ranging from $1 to $50 an image.