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Monday, May 13, 2013


A commenter on the previous essay wants me to get down to brass tacks. Ok.

Suppose that I write down a copy of the melody "Londonderry Air" in the key of G. I have transposed it, and written it down. Do I have any copyright on this thing? Certainly not. That would be ridiculous and insane. Suppose that I arrange Londonerry Air in the key of G for 2 violins, a flute, and an electric guitar? That, interestingly, is copyrightable. The arrangement is, the melody is not.

The distinction here is the degree of creative act, or something.

Suppose, now, that I go out with my camera and stand in one of the usual places and take one of the usual pictures of the Golden Gate Bridge. Do I have a copyright? Well, the presumption is that I do. This, despite me having done the photographic equivalent of writing down a well known tune in the key of G. Could this copyright be broken? It's certainly possible that it could be. Do I have a right to this copyright, under either of the traditional rationales for intellectual property? I certainly do not.

I don't care if you worked super hard to make your copy of the same picture. I don't care that it's "your copy" of the same old picture. There is no creative act and therefore there is no intellectual property that belongs to you by any reasonable rationale. You pressed a button. You own a media card with some 1s and 0s on it, that is certainly yours. You do not really own the intellectual property which is that picture, any more than I own "Londonderry Air in the key of G". But see the sequel, it turns out that you may just as well.

If you take your photograph of the Golden Gate Bridge, and photoshop eagles all over it, you've got something. You've performed a creative act. You have, roughly, arranged Londonderry Air in the key of G for 12 kazoos. That is an atrocity, but a copyrightable atrocity. Well done.

Now, in practical terms and under the law, you may as well have a copyright of your stupid picture. You might complain if I "stole" it, so if I am sensible I will simply find some boob on flickr who will give me a copy of a picture that's pretty much identical to yours. This is an economic judgement on my part, and in no way reflects anything about intellectual property. Essentially, you have possession of a thing which you do not own, but arguing about it simply isn't worth my or anyone else's time.

Not every picture is a stupid copy of everyone's picture of the Golden Gate Bridge, to be sure. Lots of them are, basically, but there are lots of the other kind as well.

Pictures which I cannot trivially find a free or nearly free copy of are typically the ones that are actually deserving of copyright. So, in practical terms, we may as well assume that all pictures have a fully potent copyright.


  1. The bottom line for me here is not intellectual property rights but simply property rights and ethics.

    Your conclusion seems to be that because there are other similar, near identical, images of something, then 1. there are no ownership rights and thus 2. there should be no penalty for someone lifting it and using it for their own purposes.

    There are lots of generic things, like my copper wire example, that exist that have no intellectual property rights but you wouldn't even consider that it should be legal to steal those from their owner. I doubt you would think it alright to steal my print in my house of that image of the Golden Gate Bridge, but somehow you can rationalize that someone taking my digital file or copying it without my permission should somehow be OK ethically? (to be clear, I am not saying you have ever done anything of the sort, just that that seems to be the thrust of the argument here, that such an action should be OK)

    This logic just escapes me. It shouldn't be right to use someone else's specific effort/creation without some form of consentual agreement. But, certainly, go make your own version and use it all you want.

    1. Analogies with physical things simply don't work for intellectual property. If you have a coil of copper wire, and I have an identical coil of copper wire, there are two coils of copper wire.

      If you have a photograph, and I have an identical photograph, there is only one image. There might be two prints of it, but the image itself is the same image. You own one print, I own the other. Those are physical property. There is only one image. That is intellectual property.

      The picture itself, as intellectual property, exists as a single thing. There are not two of them.

      By your reasoning, if I worked REALLY HARD to transcribe Londonderry Air to the key of G, then "Londonderry Air in the key of G" should somehow belong to me. It doesn't, and it shouldn't, for reasons I have in fact covered in some detail.

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  3. As I said, to me it is an ethical issue although I most likely would also be able to perfect my copyright in my "similar" image. But regardless, your copy of my image would only exist because YOU copied, without permission something that is, in fact, mine and that didn't belong to you--ethics here, not law. I personally don't think it is right regardless of the legal implications.

    But the reason I could perfect my interest in my copyright is because my photograph would be of a specific moment in time with specific conditions--my intent, characteristics of the sky at that moment I "chose" to create the image, positions of boats, cars and other vehicles when I "just" pressed the button, framing and focal length, shutter speed effects, "eagles" or seagulls I allowed in the shot, the nature of the water's surface, glints of light off various objects etc etc. that can all be indexed to substantiate a specific creative decision making process that created THAT MOMENT in a photograph through my efforts--no other photo will index/map in all ways to my effort. And this is why I don't see your example of the Londonderry Air transcription as being an apples to apples comparison. Rather, it would be more in line with your copying my photo and then using the Hue Slider to change the color palette. The work itself, the full underlying structure, in both of these cases, can then be "completely" indexed to the original which cannot be said for the individual photos of the Bridge.

    While I understand your point is that many, if not most of the images of Golden Gate Bridge you are referring to are simply quick snaps from predetermined spots--maybe even under an old Kodak "photograph here" sign, the complications (and there are hurdles to asserting copyright) of determining outside of court what is or isn't a creative effort would be impossible.

    But I do totally agree with your statement " So, in practical terms, we may as well assume that all pictures have a fully potent copyright. " because under the law that is generally presumed to be the case.