To: cni-copyright@cni.org

Subject: photographing the environment

Date: Fri, 21 Jun 1996 12:13:28 -0400

From: David Dailey <ddailey@hancock.cc.williams.edu>

Thanks to Terry Carroll for replying to his own post. It sets a convenient precedent. On Thu, 4 May 1995 (20:31:02), I wrote the following series of questions to this list. A few replies arrived, but most of the questions were left substantially unanswered. Since I have remained curious about these questions, I've been keeping my eyes open during the intervening year. My intention now is to hazard some answers to the questions in hopes that those on the list may unburden me of any (no doubt numerous) misunderstandings I may have collected.

This is a long post, so apologies in advance. Apologies also, for any distractions that my occasional attempts at humor may impose. I recall that, upon posting the note, someone on the list speculated that I had lifted the material from an IP exam, perhaps trying to make my life easier in law school. Nope. I'm neither in law school nor have ready access to such exams. The questions were mine. As administrator of a college web site, I am simply curious about what the faculty and students who post material on our web site can and cannot legally do.

A rule-of-thumb we've used is that one should generally limit oneself to either 1. one's own original work,

material already in the PD (in some verifiable sense), or

work for which permissions have been obtained.

That is, I have generally urged our web contributors not to rely on clauses of "fair use," because of all the worms contained in that can (guilty until proven innocent, deep pockets, etc.). Nevertheless, as the following points out, even one's "original" work, if one does it in the wrong place, may be fraught with potential troubles.

--------- The material preceded by ">"s constitutes the May 1995 posting; that without is the new stuff. --------------

>Okay, I'm a photographer. I go out into the woods and I photograph.
>no problems of IP since Mother Nature does not file infringement suits.

Actually, this may not be so clear as I thought. If the woods happen to contain someone's "landscape art," even though I may not recognize it as such, there could be trouble. Best to make sure the ground has no footprints traceable to either original expression or to specific shoe manufacturers. (I suppose the purchaser of a shoe receives an implicit license from the manufacturer to create footprints as a derivative work based on the not "solely" functional but copyrightable tread of the shoe.)

>But in my walk through the woods, I come upon a hamlet, filled with the >material artifacts of modern civilization. Let us suppose, for sake of >argument, that all the artifacts I see below were created in 1995 in

>the United States and that they are all visible from the main street
>of the hamlet along which I am walking.
>Can I photograph (and then do what I want with the results –
>including cropping, scanning, putting on a home page, selling, or
>donating to the public domain):

The issues of cropping, home pages, selling and donating to the public domain, are, alas, all a bit different. Comments later.

>1. A building (or does the architect claim copyright for this
>expressive-and-not-purely-functional expression)?

Ahh... Title 17, section 120 of US Code specifically exempts me from worry here (almost). If the building is (as per assumptions of this scenario) visible from a public street, the copyright in the architectural work does not include the right to prevent the making of pictures, etc. of the work. But, unfortunately, the photographer need not just learn the 10 chapters of copyright law, there is also trademark law lingering about to dampen one's artistic zeal. This reprinted, via Educom's Edupage (16 June 1996), from the NY Times:

WHO OWNS THE "IMAGE" OF A BUILDING? In a precedent-setting intellectual property dispute, the Rock & Roll Hall of Fame & Museum in Cleveland, Ohio, is suing a photographer for infringing its trademark by selling posters made from his photo of the architecturally distinct museum. Photographers, artists, filmmakers, and publishers are concerned about the implications of allowing trademarks for buildings, but lawyers for the museum argue: "If we lose our rights on posters, we'll lose it on T-shirts and hats."

Trademark protection generally is intended to prevent someone from copying a building's distinctive shape (such as that of the famous McDonald's golden arches). The issue is whether the photographer's profits from the poster are due mainly to his own creativity as a photographer or rather to the beauty and fame of a building designed by others. (New York Times 16 Jun 96 p1)

So there! What copyright law does not take away, trademark law may.

>2. A car (let's say that the design is patented, and the outward form
>and shape are protected by trademark)?

I really don't know. Given that the form and shape are trademarked, one must worry. But IP law is designed to instill worry, so we need only to worry and not "metaworry." I suspect that if the portrayal of the car is incidental to the photo -- namely, it is only one more object on the street -- then Ford and fellows are unlikely to fuss. Indeed, Disney probably doesn't get permission from Volkswagen to make Herbie movies -- then again maybe they do. Yuck! More under "book jackets" below. It does seem that trademark protection exists primarily to prevent confusion as to source of origin, rather than to preclude derivative works, and my consuming public, it seems, will be unlikely to confuse me, as the photographer of a car, with an auto manufacturer. Clearly, I'll have to follow the R&R Hall of Fame case to see how this shakes out, since the photographer, though not really pretending to be an architect was sued anyhow.

>3. A wheel barrow (close inspection shows no evidence of the identity
>of the manufacturer) which is clearly a wheel barrow but is graceful,
>wonderful, and magnificent to behold (but then again maybe it's just
>the lighting)?

Same as above. While not eligible for copyright protection, most likely (because its grace and wonder are probably accidents of functional considerations of its construction -- see Section 113), it's best to realize that the wheel barrow factory folks will certainly recognize their trade dress, particularly if my picture of their barrow shows up on Hillary Clinton's t-shirt on Good Morning America.

>4. The lettering on the window of a store front (it is quite pretty
>actually)?

Oh goodness. There was an interesting discussion of the copyrightability of fonts on this list a few months ago. On Sat, 16 Mar 1996 19:26:41 GMT, Terry Carroll (carroll@tjc.com) wrote:

The rule against copyright protection for typefaces comes from the Copyright Office's position that a typeface is purely a design for a useful article, and is not a work of authorship. The Copyright Office successfully argued this position under the 1909 Copyright Act, in Eltra v. Ringer, in the 4th circuit in 1978. In 1992, it codified its position as 37 C.F.R. 202.1(e).

And despite a valid distinction between fonts and typefaces, both seem to be unprotected (except for such things as Postscript fonts which are actually programs for expressing typefaces, rather than mere data).

Terry's article "Protection for Typeface Designs: A Copyright Proposal" in volume 10 of the Santa Clara Computer & High Technology Law Journal, would be good reading for the photographer, before the shutter is actually opened on the window lettering. It is quite conceivable that elaborate and decorative letterings (like the fancy letters which begin chapters in old books) might transcend the functional and utilitarian purposes abandoned by the Copyright Office. Alternatively the phrase(s) created in that lettering may be the name of a store, and again, subject to trademark law, or even an original authorial and hence copyrightable expression.

>5. The book-jackets of several books visible through the window?

The book jackets are definitely copyrighted. But if the display is incidental to the photograph, then there may be no problem. See, for example, http://www.benedict.com/batman.htm#batman for a description of Warner Brothers' allegedly infringing use of an Andrew Leicester sculpture. I'm not quite how "incidental" has been defined by the courts, and cannot really find anything in the statutes which spells it out. Perhaps someone can enlighten me here. Also best to be careful when photographing windows, since one may accidentally get some stray reflections in the glass. Those reflections might (upon computer enhancement) contain the image of the Playboy bunny logo dangling from the rear view mirror of the car parked across the street. Likewise, best to avoid photographing celestial objects (unless they are more than 37.5 = 75/2 light years away) for fear that reflections of some earthlight bearing someone's IP might be gathered.

>6. An awning (printed with a delightful floral print) above the
>window?

One can be certain that the fabric industry has generated its own charming and peculiar caselaw, as one company modifies another's design in the eternal quest for the perfect fabric. Fabric is certainly a tangible medium, and the expressions often contain originality beyond function, so copyright must exist. But, it does seem as though fair use might kick in here. It would be hard to argue that my photo is going to hurt awning sales. However, if my photo directly portrays the floral print, in some obvious way, and (extending the argument a bit) suppose I scan the photo, extract the floral print and then use the print as the basis for a line of greeting cards, then indeed I'm likely to run into trouble. Where is the line between the fair and the unfair use? In the courtroom. Alternatively, if the photo happens to be a magnification of the "weave" rather than of the floral pattern placed upon the fabric, then it could be that certain weaves are protected by trademark, patent, or even trade secret. Weaving, by virtue of its containment of mathematical knot theory, is sufficiently complex that one can no doubt pose undecidable questions in the metalanguage of weaving, construct Turing machines, and so forth. All of this tends to suggest (to this naive observer) the laws governing algorithm and process and despite the fact that software is currently thought of as literature rather than as process. Most processes (and their by-products) seem to be protected by patent law. More on tiling below.

>7. A billboard advertising a particular brand of cigarettes?

Again, a potential mix of copyright and trademark issues. If I use, for example, my photo to make some sort of social commentary about the tobacco industry, then I might also run afoul of the rights of attribution and integrity covered under Section 106A.

>8. Several whiskey bottles with labels quite visible. (The edge of the
>window sill and the lighting make it a particularly nice shot.)?

Same situation. Though a bottle label (and the bottle itself) may contain trademark and copyrightable elements, I might be tempted to view any particular one as incidental to the overall composition. A friend of mine created some posters of beer bottles; she indeed wrote to each of the manufacturers for permission. Most were willing (perhaps bottlers are not so deluged with IP requests as other producers in the info trade) . Did she need to? Maybe. Shapes as well as colors are eligible for trademark protection, and those companies which most value their trade dress are most likely to be concerned if their product is depicted "on the same shelf" as another considered by them to be inferior. Another issue here: while my friend arranged the bottles on her own shelf (I forgot to ask who built the shelf) any compilation copyright (for the arrangement) belongs to her. But in the case of the bottles in the store, the store owners might hold some sort of copyright in the arrangement. While placing bottles on the shelf might be viewed as a strictly utilitarian arrangement, one might view the bottle arranger's contribution as an original expression. I suppose there is an implied license to the liquor store from the beverage industry to create this derivative work since by promoting sales, shelving is desired by both: Section 113c says "copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such [useful] articles in connection with advertisements or commentaries related to the distribution or display of such articles." More on compilations and derivative work later.

>9. A man wearing a t-shirt with a very interesting (and obviously
>copyrighted) geometric design on it?

The notion that one cannot photograph a garment without permission from the garment industry, coupled with the copyright industry's notorious unwillingness to convey permissions, would converge to suggest that the laws would prefer us to limit our photographs of humans to those of nude humans. The film industry often gives credit to the fashion designers -- I always thought it was because they wanted the best possible fashions for their actors, but perhaps it is because they have bought the copyright on the fashion (as a work for hire) simply to avoid having to write the garment industry for permissions. It might be easier. I suspect that it is generally not easier to manufacture a car than to get permission to photograph one, but with garments it may be. In addition to the garment manufacturer there are also the possibly distinct rights of the graphic artist who made the geometric design. Most likely, the graphic artist has signed away certain very limited rights to the garment maker: other exclusive rights probably rest with the artist. I would be curious to know of any case in which a photographer has been sued for infringing the rights of a garment designer through a photo of someone wearing the garment. Presumably when we purchase garments, we have been conveyed an implicit license (through the first sale doctrine?) to display those garments in public, by wearing them -- clothes would seem rather useless if we cannot wear them in public. But any contract we as models may enter into allowing ourselves to be photographed may be void so long as we are clothed in someone else's intellectual property.

>10. A large cardboard box that says "Feather Grease" on it and has a
>simple illustration of a winged oil can under the label?

Same as several others: trademark, trademark, and copyright.

>11. A state highway sign (this is a state that likes to own its >work-for-hire)?

The feds are not (usually) allowed to get away with owning copyrights (Section 105). The material contained on Interstate highway signs belongs to the public domain (lovely white letters reading "Wichita 36" on a green background are a part of America's heritage after all -- unless, of course, someone in Eisenhower's highway department licensed "Interstate green" from Pantone). But since states are allowed to hold copyright, it is conceivable that someone might fuss if I take a snapshot of their sign. If for example, I were to use my photo of the state of Pennsylvania's keystone shape as a prominent part of a highway billboard I've designed, then I might run into trouble with the state if they think I have falsely conveyed the state's support for my business, or if they otherwise are fastidious in protection of copyright. Likewise though, certain signs and marks of authority of the US government, while not protected by copyright, may be governed by separate laws -- e.g., the presidential seal, and US currency. ( Flags, stamps, seals, currency, all these things are rather complicated, it seems. The first sale doctrine, for example, does not seem to apply to flags.) Willie Nelson seems to be able to use the flag of the State of Texas without trouble, but this may stem from some inalienable rights of Texans. (Only speculation... I'm not fluent in Texan.)

>12. An elegant tiling done on the wall of an interior and private
>courtyard leading off the main street and visible from the main
>street?

"Visible from the public street" seems to be equivalent to "located in a public place" at least under Section 120. But tiling. Hmmm.... I offered a class in tessellation theory recently and discovered to my dismay that one of the Penrose tilings was apparently in some way protected (I never verified this, but as the story goes, some college wanted to tile the floor of a new math building with a Penrose tiling and couldn't). Assuming the tiling is interesting not for its qualities as a mosaic (owing to the arrangement of colors in locations), but rather for a curious pattern of polygons in two-space, then we may be in a different realm. Since tilings may be organized into symmetry groups, they become rather like facts. There is the (33344) tiling and the (33434) tiling -- see for example, the background used at http://www.williams.edu:803/Individuals/ddailey. I suspect most "normal" tilings (like the square or hex grids) are absolutely unprotected, having been independently discovered/invented by numerous cultures in antiquity. But, as the metallurgical and computational uses of nondeterministic tilings become more ubiquitous, the urge to protect these items will clearly grow. And yes, there are undecidable problems embedded in the theory of tiling, so one can create "monster" tilings of the sort that make Russell, Frege, and Whitehead queasy. So I guess if the tiling is not "too interesting," then it is photographable.

>13. A man making a facial expression quite unlike any I've ever seen
>before?

A tangible medium? Fixed in Ham? I really don't understand the model-permission business. Must I indeed have permission from each person in a photograph in order to snap the shot? If so, then, the copyrightability of his facial expression, is somewhat moot since permission to photograph him would imply permission to photograph whatever expression happens to be on his face. I could imagine someone like Jimmy Durante claiming trademark on a facial expression, but don't know if such has ever happened.

>14. A sand castle that a young child has made in a playground?

It is a tangible expression in a (temporarily) fixed medium. Best to get permissions. Parents probably should be located, biological as well as custodial.

>15. A sculpture standing in a public square?

See the Batman case cited above in number 5.  The sculpture in question was indeed in a public square.

>16. A beer can so crumpled I cannot, with certainty, detect the
>manufacturer?

A detailed computer-assisted analysis of my photo by the beer manufacturer may indeed reveal some identifiable trade dress, and may allow them, conclusively, to show that the can I photographed was one of theirs. But given the ordinary human's inability to detect these signs of origination, it is unlikely that the manufacturer's rights have been infringed.

>17. A painting that a sidewalk artist has just finished?

Interestingly, this last weekend, the city of Troy NY had a river/arts festival. Dozens of literal sidewalk artists were drawing on the sidewalks in chalk and oil, while grosses of passersby gleefully photographed. I was tempted to issue a citizen's arrest, for fear some of this infringing iconography might find its way onto the Internet and upset someone important. I restrained myself, smug in the knowledge, though, that they were criminals, each one of them.

More seriously, the photographer must pretty much rely on fair use as an exemption. The analysis will, of course, depend on the uses to which my photograph is put. If I were to scan such a photo, crop it down to show exactly the original work on the sidewalk, and then bandy it about in some ostentatious and commercial way, I'd be in trouble. If its ultimate destination is a slide carousel used for home viewing, this is probably fair. Unfortunately, this is not for the photographer, but for the courts to decide.

>18. A doll depicting a well-known cartoon figure protected by trademark?

Well, most likely the cartoonist has licensed the doll-maker to use the likeness. Rendering into two dimensions, an object, originally expressed in three, doesn't exempt me. (Nor in fact, as park-bench-puppy-sculptor, Jeff Koons, who sculpted from a greeting card, discovered, does rendering a two dimensional object into three -- even though the majority of the angles from which one can view the sculpture reveal no physical resemblance to the original two-D work.)

If I were to zoom-in on a strand of cotton DNA used in the doll's overalls, or to zoom out so that the doll's image now occupies only three pixels worth of light in my photo, then in either case, I'm probably okay. Otherwise... trouble.

>If I take a picture of a scene containing all of the above, must I
>clip/censor anything from it because of IP infringement of one sort or
>another?

Yep, probably! Although it is axiomatic that no two IP attorneys would agree exactly on which of the 2^18 = 524,288 possible clippings of these 18 elements would be legal. Most likely one should steer clearest of the things for which trademark may be present, since the merely copyrighted things, as collaged in the photo are each relatively incidental.

>If not, may I crop the picture to focus closely on any one of the
>particulars above? If so can I blow-up item 8 and print it onto a
>t-shirt? If so can I take a print of number 18 and cut it and fold it
>into a shape resembling that of the doll?

Probably not. Section 103 b seems relevant:

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. "

That is, while the overall work may not infringe the individual elements (if they are incidental), cropping it down to feature a copyrighted work could run afoul of the copyright on the individual piece. Interestingly (for the arguments about extracting public domain material from databases), the converse of this would imply the right to extract public domain pieces from the copyrighted aggregation.

>May the photographer claim original expression in the composition of
>all these items, but lose this when the photo is cropped?

Yes, again 103 b seems to say so. Any database protection legislation may effectively nullify 103b, however.

>Or must the photographer be expected to contact all potential rights
>holders of all the artifacts contained in the picture?

The proposition seems ludicrous. The examples point out that there are potentially scores of such rights holders, many of which are impractical to identify. The garment manufacturer, the builder of the shelf for whiskey bottles, the reflections of subliminal IP in the store window, etc. would all be difficult to anticipate, track down, etc. The photographer may have to plead fair use.

>One fuzziness in my mind about all this is:
>Can a piece of intellectual property be covered by trademark, patent
>and copyright simultaneously, or does opting for one form of
>protection prevent one from claiming the others?

I'm now less fuzzy on this. Yes, something can come under all these forms of protection concurrently, though the aspects of a work protected by these three are all a bit different.

>Does my own degree of fame and the fame of the creator of these
>artifacts enter into the question of whether or not my behavior is
>legal?

I hope not. Certainly, however, one can multiply the fame coefficients of the photographer and the original rights holder and come up with a scale closely correlated with the probability of a lawsuit. The size of the settlement will be predicted by the square root of the product of the net worth of both parties.

>Is there any simple and consistent way to answer these questions?

Apparently no simple way exists; I'm still optimistic that some consistent way exists; alternatively, it may be that the mere concept of "intellectual property" is so riddled with paradox in some epistemological sense, that any comprehensive codification will be rendered inconsistent. Regardless, given the rate with which the statutes have been amended to address changes in technology (only three of the sections [103, 104, and 120] of Chapter 1 of Title 17, for example, do not contain clauses overtly addressing technologies unique to this century), simplicity may be a lost cause. Certainly as the body of statutes expands to meet the special needs of various distinct information industries, the probability that inconsistency will be introduced into the statutes increases as the law outstrips the ability of minds to comprehend it.

Revisiting the earlier issues:

>Can I photograph (and then do what I want with the results:
>including cropping, scanning, putting on a home page, selling, or
>donating to the public domain):

Cropping to focus in on any protected object is likely to cause trouble. Putting it on a home page will broadcast any transgressions I may have committed. Selling it increases both the notoriety of the transgressions and the depth of my pockets, and it tips the balance on the scales of fair use. Donating it to the public domain could be extraordinarily complicated, riddled with all sorts of potential liabilities, though 103b may limit those liabilities somewhat.