Copyright (c) 1990 by the High Technology Law Journal; Benjamin R. Seecof
Table of Contents
I. INTRODUCTION .......................................................
372
II. THE TECHNOLOGY .....................................................
373
III. COPYRIGHT AND ETHICAL PROBLEMS: A FOCUS ON PUBLISHING AND COMPUTERS
377
A. Publishing ...................................................... 377
B. Computers ....................................................... 378
C. Injury to Photographers ......................................... 380
IV. THE TRADITIONAL APPROACH TO COPYRIGHT INFRINGEMENT AND ITS
APPLICATION TO IMAGE PROCESSING .................................. 380
A. The Traditional Approach to Copyright Infringement .............. 380
B. Application of the Traditional Approach to Infringement Through
Image Processing ................................................. 384
C. The Fair Use Exception .......................................... 389
V. A PROPOSED NEW COURT APPROACH TO COPYRIGHT INFRINGEMENT OF STILL
IMAGES ........................................................... 392
A. Access .......................................................... 392
B. Professor Cohen's Approach ...................................... 392
C. Modifying Cohen's Approach for Image Processing ................. 393
D. Justifying the New Approach: Why It Will Work ................... 394
E. A Hypothetical Example .......................................... 395
VI. IMAGE PROCESSING COMPARED WITH DIGITAL SAMPLING ....................
397
VII. THE NEED FOR A NATIONAL REGISTRY TO COLLECT ROYALTIES AND PROTECT
ARTISTS .......................................................... 398
VIII. CONCLUSION .........................................................
399
To Footnotes
I. INTRODUCTION
Traditionally, infringing upon copyrighted photographs and drawings was
an easy task. An infringer hired a competent artist or photographer to recreate
the image, and then the unlicensed copy was put to use. Today, swiftly advancing
computer technology is making traditional processes for infringement seem
slow and laborious. This new computer technology, namely digital scanning
and image processing, has created a need to refine the tests for copyright
infringement.
Digital scanning and image processing in the computer graphics and photography
industries parallels digital sound sampling in the music industry. The inadequacy
of current copyright law to protect still images and the lack of photograph
infringement cases should be addressed by a plaintiff-oriented approach
to copyright infringement lawsuits, providing still images actual protection
and encouraging artists to protect their images. Image processing technology
has made extra-judicial protection necessary for artists, both to enable
people to use artists' work without infringing copyrights and to compensate
artists for the use of their work.
Section II of this comment provides an introduction to the relevant computer
technology and its capabilities, costs, and applications. Section III presents
the copyright and ethical problems that have arisen and are expected to
arise with the use of this technology. Then in Section IV, the traditional
approach to determining copyright infringement is discussed. This section
reviews the applicability of the traditional approach to the problem of
infringement through digital scanning and image processing, followed by
a discussion of the fair use exception. Section V proposes a change in the
traditional approach that would compensate for the increased infringement
potential of this new technology. Section VI compares image processing and
digital music sampling. Finally in Section VII, this author suggests that
artists organize a national registry, similar to those in the music industry,
in order to protect their work and collect royalties.
II. THE TECHNOLOGY
Image-processing is "the alteration and analysis of a picture for such
purposes as enhancement and recognition." [1] Image processing products
and their functions fall into four major categories: electronic photography
cameras (input or image capturing devices), playback and recording systems
(processing devices such as computers), still-image printers (output devices),
and image transmission systems (for communication between processing devices).
[2]
In order to process images, an image must first exist. Although images can
be created on computers without any outside source, [3] this Comment will
focus solely on the capture and alteration of existing images. Most often,
an image (usually a photograph) is inputted to a computer for processing
by using an electronic camera which digitally scans the image. [4] To scan
is "to digitize, or convert, a real-world image, such as a photograph
or text, into ... data on a computer. The resulting digital image is also
called a scan." [5] Electronic cameras, or scanners, come in several
forms, including laser scanners, [6] CCD cameras, [7] and fax machines.
[8]
An important feature of scanning devices is the degree of resolution they
achieve in the copies they make. This resolution is expressed in the number
of component parts, or pixels, into which an image is divided [9] - the
more pixels, the finer the detail in the picture. [10]
Once an image has been digitized through the scanning process, a computer
can manipulate the image. [11] Computer memory, computer disk, magnetic
tape, and other common means electronically store the digitized image. [12]
Once stored, the memory of the computer must contain the proper image processing
program in order to process the image. Such programs are quite common. "Systems
for image processing range over almost all of the computer field-from Apples
and IBM Personal Computers (PCs), through small minicomputers, to mainframe
installations." [13]
The extent to which an image can be manipulated during storage depends on
the type of image processing program that is used. "[S]oftware lets
users ... electronically process in much the same way one might in a conventional
darkroom-but without the time and materials." [14] Undoubtedly, such
programs put a new face on photography, and go beyond darkroom capabilities.
[15]
What can a typical image processing program do? In general, such programs
can crop, retouch, cut and paste, change contrast, change brightness, outline,
distort elements of an image, rotate an image, blur an image, sharpen or
enhance edges, airbrush, smooth textures, add textures, change from positive
to negative (and vice versa), highlight, enlarge, reduce, change tint, posterize
(to group similar gray values), alter threshold (to change all grays to
either black or white), merge two images, or change an image's background.
[16]
These possible manipulations result from a computer's ability to take each
pixel in an image and individually recolor, reorganize, alter, or combine
it with another pixel to enhance the image or form an entirely new image.
[17] Many computer programs can manipulate 256 levels of gray. [18] In order
to alter color, some programs have a "palette" of 16.7 million
colors from which to choose. [19]
Certain procedures are easier than others. For instance, eliminating an
object in the background of a photograph is a simple process. [20] Wholesale
operations such as enlarging, reducing, or changing an image from positive
to negative are also categorized as "easy." On the other end of
the scale, pixel-by-pixel manipulation is relatively time consuming. Yet
a computer's ability to alter a photograph's smallest elements can create
the most unique and radical effects. [21] For example, a person's eyes,
closed in the photograph, can be opened, and his or her eye color changed.
[22]
Once scanned, processed, and then reprinted, alterations made to a photo
can be undetectable. [23] Arguably, if a copy has enough alterations, its
source material will be unidentifiable. Image processing produces extremely
accurate and realistic copies. [24] National magazines have used image processing
to alter photographs which their readers would assume were unchanged. National
Geographic Magazine, for instance, manipulated the pyramids in the background
of a photograph of Egypt so that all the pyramids would fit on the magazine's
cover. [25]
Once an image has been scanned, stored, and manipulated, it can be outputted
to a variety of media. These include digital cameras, [26] printers, [27]
photographic prints, [28] slide negatives, [29] transparencies for overhead
projectors, [30] lithographs, [31] and silkscreens. [32]
Output can also take the form of transmission to another system. [33] This
type of intersystem communication is usually accomplished via phone lines
using standard modem communication software. [34]
The cost of digital scanning and image processing technology has decreased
significantly and is expected to continue falling. Fax machines cost one
fifth what they did five years ago. [35] Today, consumers can purchase an
advanced scanner for around $2000. [36] Memory chips cost one thirtieth
of what they did in 1980 and have much greater capacity. [37] This additional
storage capacity translates into an ability to store larger numbers of more
detailed pictures. [38] Image processing programs for home computers cost
in the neighborhood of $500. [39] Electronic publishing systems have become
so cheap that small businesses can economically produce their own advertisements.
[40] In 1988, the value of shipments of hardware and software used in computer
graphics systems reached $9.1 billion. Such shipments are expected to grow
to $27 billion by 1993. [41] Image processing systems are also becoming
more powerful; today a $7,000 personal computer with software can outperform
a $100,000 graphics workstation from 1980. [42]
In addition to the low cost and ease of manipulating scanned images, scanners
can process images with remarkable speed. State-of-the-art scanners can
scan 120 office documents per minute. [43] Within six hours, one can convert
a photo into a full size billboard. [44] Recording photographic subjects
directly in digital form using a special camera, rather than scanning an
intermediary photographic print, could soon be viable. [45]
III. COPYRIGHT AND ETHICAL PROBLEMS: A FOCUS ON PUBLISHING AND COMPUTERS
The publishing industry and the computer industry are breeding most of the
copyright problems based on image processing. Publishers and computer hackers
alike are grappling with the legal and ethical difficulties posed by image
processing, often at the expense and distress of photographers and other
image producers.
A. Publishing
Traditionally, readers trusted magazines to use unaltered photographs. With
the changes in technology, however, publishers can alter any photograph
available to them. Responding to criticism for moving pyramids on its cover,
[46] National Geographic Magazine's editor maintained that the alteration
merely established a new point of view from which the photo could have been
taken. [47] The news industry, as a source of documentary images, generally
agrees that "[e]lectronic manipulation is acceptable only in efforts
to improve design elements, as seen in the National Geographic example,
but not to [re]arrange actual events." [48] Other than this position,
very little agreement exists as to what ethical standards press photographers
should use. [49] Moreover, the advertising industry has implemented fewer
and less rigorous ethical restraints on scanning and image processing than
the news industry. [50]
B. Computers
1. ELECTRONIC BULLETIN BOARDS AND INFORMATION SERVICES
Unauthorized use of images is now commonplace in the desktop publishing
industry. [51] One writer humorously defined copyright in a personal computing
magazine: "Copyright, n. The indisputable common-law privilege held
since time immemorial by owners of optical scanners to reproduce anything
they can get their hands on as clip art." [52] Computer bulletin boards
and information services enable personal computer users with modems to send
(upload) and retrieve (download) images (clip art) to and from these services'
computers. Knowing that copyright infringement is taking place, the computer
services post warnings to subscribers that submission or use of copyrighted
material is illegal and should not be done without the appropriate permission.
[53]
Beyond warnings, these computer services generally take two approaches to
copyright infringement. First, some conference services do not enforce the
warnings and do not monitor the system for copyrighted images. They argue
that the service "is a common carrier, like the phone company, and
as such is not responsible for the content it carries." [54] Second,
conference services that publish images as well as carry them monitor their
services as best they can, but often find it impossible to recognize copyrighted
material. These systems operators contend "that they could not purge
the graphic files and remain competitive." [55] In response to magazine
complaints about infringements taking place, some services argue that "because
no one can mistake a scanned copy for an original, the copyright holder
is not hurt." [56] At best, the argument is weak, and considering the
capabilities of image processors, this position would likely fail if maintained
as a de ense. [57] Other services hope to use the fair use exception to
avoid liability. [58]
2. INDIVIDUAL USERS
Computer users are engaging in unauthorized use of image processing because
the computer industry lacks standards to guide them. [59] The industry needs
and wants guidelines, as evidenced by trade magazine articles that attempt
to tackle the problem. [60] These magazines provide inconclusive advice
and discussion about this dilemma. [61]
In the meantime, computer users stumble along. Many small businesses create
their own advertisements by using desktop publishing programs to manipulate
scanned images. [62] In some cases the computer manuals for these programs
demonstrate cut and paste techniques without warning the reader about possible
copyright infringement. [63]
C. Injury to Photographers
While computer users and photographers debate who owns the copyright to
composite or altered images, [64] photographers are also voicing other concerns.
For instance, the American Society of Magazine Photographers is concerned
about its members' financial stake in processed images and about the integrity
of those images. [65] As the copyright holders, photographers do not want
anyone else to tamper with their images for either commercial or aesthetic
reasons. [66] Other photographers hypothesize that digitizing to create
as well as to infringe upon images could make photography unprofitable.
In addition, the art of photography could lose its outstanding and creative
people, resulting in reused, boring images without individual creative spark.
[67]
IV. THE TRADITIONAL APPROACH TO COPYRIGHT INFRINGEMENT AND ITS APPLICATION
TO IMAGE PROCESSING
A. The Traditional Approach to Copyright Infringement
The traditional court approach to copyright infringement actions is helpful
in determining how copyright concepts will be applied to copying through
image processing technology.
Courts have traditionally required three elements in a copyright infringement
case. [68] First, the plaintiff must prove that the defendant had access
to the plaintiff's work. [69] Second, the material at issue must be copyrightable
material. [70] Copyright law protects only the expressions of ideas, not
the ideas themselves. [71] Thus, the plaintiff must show that the material
was an expression, not just an idea. [72] Third, the plaintiff must prove
that the two expressions are substantially similar, with the trier of fact
acting as an ordinary observer. [73] If the similarity exists, the defendant
can still escape liability if the trier of fact finds that he or she fairly
used the material. [74]
1. COPYRIGHTABILITY OF STILL IMAGES
Photographs and other images (e.g. drawings, paintings, lithographs) are
copyrightable. [75] The concept of originality figures heavily in determining
the differences between idea and expression in photographs. [76] Slavish
copying of a photograph (e.g. xeroxes, photographs of photographs, or microfilm)
is not considered original, so a work produced by one of these methods is
not copyrightable. [77] Although every photograph could be considered an
"original," for purposes of copyright, courts do not consider
it original to reproduce a photograph by copying the technique and subject.
The copyist is liable for infringement if a court cannot find any distinguishable
variation from the original. [78] Generally a copyright on a photograph
gives rights to all the copyrightable original elements. These elements
include angle, perspective, choice of lens, and color patterns, but not
the subject unless the subject itself is copyrightable. [79]
2. SUBSTANTIAL SIMILARITY
The determination of similarity between two works necessarily involves an
attempt to grasp the difference between idea and expression. [80] This dichotomy
is ambiguous. [81] It often involves determining the point at which a work
embodying a common theme (an idea) rises to a level of originality at which
it becomes an expression of that theme. [82]
Substantial similarity is also a rather amorphous concept. [83] Generally,
similarity between two works is of two types. The first type, "comprehensive
non-literal similarity," [84] occurs when the structure or overall
pattern of two works is the same. This similarity is likened to paraphrasing;
no single element is exactly the same. It means that an "immaterial
variation" does not justify allowing an infringer to escape liability.
[85] Liability exists for comprehensive non-literal similarity.
The other type of similarity is "fragmented literal similarity,"
which describes a similarity in detail but not in overarching concept. [86]
This situation occurs where some parts of the alleged copy are exactly the
same (or nearly so). Liability turns on whether the copying was material,
involved a substantial portion of the plaintiff's work, or both. Courts
and commentators often use the doctrine of fair use to describe this type
of value judgment. [87]
Ordinarily, the presence of dissimilar material in a defendant's work does
not immunize him or her from liability for infringement unless the material
indicates that the plaintiff's material is of minimal import quantitatively,
qualitatively, or both. [88]
3. TRADITIONAL APPROACHES TO SUBSTANTIAL SIMILARITY
Courts have approached the question of substantial similarity in several
ways. In most instances courts use the "ordinary observer" test,
in which the spontaneous and immediate reaction of a lay observer, without
aid or suggestion, determines whether substantial similarity exists. [89]
Courts also use the pattern test, where the original and alleged copy are
dissected to determine individual points of similarity. The trier of fact
compares these points and, based on that comparison, determines whether
substantial similarity exists. [90]
4. THE FAIR USE EXCEPTION
The doctrine of fair use allows the trier of fact to find that the maker
of a similar copy is not liable when (1) the similarity to the original
is not substantial or (2) the defendant's work fulfills a different function
from that of the plaintiff's. [91] The court weighs four factors in determining
function. First, the court decides if the defendant used the material for
a non-profit/educational or commercial purpose. [92] Second, the court must
determine the nature of the material. [93] For example, a textbook prepared
for a school market could not properly be copied for school use. Third,
the court considers the amount and substantiality of the portion copied.
[94] Lastly, the effect of the defendant's work on the plaintiff's potential
market must be evaluated. [95] These four factors may be weighed independently,
[96] and the most important factor is the last-impact on the plaintiff's
market. [97]
5. TRADITIONAL APPROACHES TO PROVING COPYRIGHT INFRINGEMENT
The traditional three-step approach to proving copyright infringement is
problematic. For instance, an ordinary observer lacks standards as to whether
he or she should compare the works as whole, look to important parts, or
look to the value of material copied. [98] In addition, the three-step approach
fails to distinguish between the issue of copying and that of misappropriation
or fair use. [99] Furthermore, the traditional approach requires duplicative
determinations of substantial similarity, first for infringement and then
for fair use. [100]
Several courts have recognized and attempted to address the problems with
the traditional approach to proving copyright infringement. In Arnstein
v. Porter, [101] using an analysis of substantial similarity under the traditional
approach, the court attempted to overcome several of the problems in determining
substantial similarity. [102] Arnstein used a two-step approach to determine
substantial similarity. First, the court determined whether the defendant's
work copied the plaintiff's work. [103] The court then did a critical analysis
which probably included evaluating the idea/expression dichotomy, not an
ordinary observer test. [104] Under the Arnstein approach, if the defendant's
work is a copy, the court then applies the ordinary observer test to determine
whether the copying constituted an improper appropriation (a theft of value
beyond fair use). [105]
Another case, Sid & Marty Krofft Television Productions, Inc. v. McDonald's
Corp., [106] which referred to the Arnstein [107] approach, used a different
two-step approach. The first step, an "extrinsic test," required
a comparison of specific criteria such as subject matter, setting, type
of artwork, and materials used in the works. [108] The second step, an "intrinsic
test," used the ordinary observer approach to evaluate whether the
similarities in expression justified holding the defendant liable. [109]
This test is limited because it does not involve a critical analysis of
the idea/expression dichotomy to determine whether substantial similarity
exists. [110] Accordingly, the court probably misinterpreted Arnstein. The
confusing overlap of substantial similarity and fair use also continued
to exist in Krofft as it had in Arnstein. [111]
B. Application of the Traditional Approach to Infringement Through Image
Processing
The traditional approach to determining substantial similarity, when applied
to image processing cases, presents two problems. First, the approach lacks
the sophistication to identify the changes made and decide whether those
changes eliminate substantial similarity. Second, the approach cannot cope
with the speed and ease that image processing lends to the task of infringing
still images.
Because an infringer using image processing can steal small fragments of
the original, the ordinary observer is easily fooled. [112] Theoretically,
a copyright gives actual protection to the copyright holder against theft
of the fruits of his or her labor. An audience's impression that the works
are or are not similar does not necessarily accomplish this goal. [113]
This test also fails to adequately distinguish between idea and expression
and to evaluate specific details in a work. [114] One solution would be
to limit the ordinary observer test to determining whether fair use exists.
[115] That is, since the fair use doctrine requires a value judgment in
evaluating whether the defendant misappropriated the expression, an ordinary
observer could make the value judgment.
1. PROBLEM #1: THE UNDETECTABILITY OF CHANGES-EMBRACING THE CAPABILITIES
OF IMAGE PROCESSORS USING EXISTING CASE LAW
a. The Pattern Test
Because of an image processor's ability to make subtle pixel-by-pixel changes,
the average person cannot detect the changes. [116] As a result, a defendant
who steals small fragments of the plaintiff's work may escape the ordinary
observer test undetected. Therefore, courts are probably not justified in
using the ordinary observer test for determining substantial similarity.
Alternatively, courts could use the pattern test and compare the individual
elements of the images. [117] Courts could justify the use of this approach
because copyrightability of photographs is based on individual elements
such as angle and perspective. [118] This alternative test takes into account
the subtle alterations created through image processing.
b. Substantial Similarity in Still Images
In comparing images, courts will encounter the problem of determining the
extent to which an image can copy the expression from an original without
crossing the threshold to infringement.
Fortunately, some case law exists for those who wish to protect against
image processors. In Franklin Mint Corp. v. National Wildlife Art Exchange
[119] the court stated that copyright confers "the sole right to reproduce
the work and to control all the channels though which ... [the] work, or
any fragments of ... [the] work reach the market." [120] Applied to
still images, ''fragments" that are copied, no matter how small, can
cause infringement.
However no such copying of fragments was found in Franklin. In that case,
the plaintiff alleged that the defendant had made a copy of a scientific-style
painting of a bird. The pictures were very similar, but no fragment was
exactly the same. The court found that an "artist who produces a rendition
with photograph-like clarity and accuracy may be hard pressed to prove unlawful
copying by another who uses the same subject matter and the same technique."
[121] The court concluded that the plaintiff's copyright was "weak"
because artists possess so few ways to expressively paint a bird's anatomy.
Thus, where the subject matter is limited in options for expression, a defendant
can escape liability unless actual copying of a fragment can be proven.
Edwards v. Rufer [122] involved a similar situation. The subject of the
photographs was uncomplicated (a ballerina's feet in the fifth position).
The court did not hold the defendant liable because the defendant had not
reproduced any part of the protectable expression, such as angle or costuming.
Other cases may help plaintiffs impose liability on defendants who steal
fragments of the plaintiff's work that make up only a small part of the
defendant's work, such as Foreign Car Parts, Inc. v. Auto World, Inc. [123]
and Hedeman Products Corp. v. Tap-Rite Products Corp. [124] Both cases involved
defendant's use of plaintiff's material as a part of defendant's multi-page
products catalog. In Foreign Car Parts, although plaintiff's material appeared
on only one page of the catalog, the court held that the defendant had infringed.
[125] In Hedeman, the court applied a test for the substantiality and materiality
of the infringement to each component part of the catalog, not the catalog
as a whole. This test questioned whether the defendant took the work at
issue from the copyrighted source. Slight differences did not constitute
a defense. [126] Similarly, in Lynn Goldsmith v. Peter Max, [127] the defendant
had cut up a photograph of Mick Jagger and incorporated pieces of the photograph
into an acrylic painting. The court noted that, had the plaintiff's copyright
been valid, it may have held the defendant liable for infringement. [128]
The preceding line of cases does not consider situations where a defendant's
copy involves different subject matter or an area where many possibilities
for expression exist. Therefore, these cases do not provide adequate guidelines
regarding the extent to which an image processor can copy without infringing
on the artist's copyright. If there is no copying, there can be no infringement.
[129] But how big is an infringing fragment? One pixel? Two pixels? This
undoubtedly depends on both the fragment's recognizability and the outcome
of an evaluation under the idea/expression test. Although undecided, courts
will probably protect any small piece that a plaintiff can identify as coming
from his or her photograph.
c. Case Law Analogous to Image Processor Functions
Court decisions in similar situations provide some indications about how
courts may treat image processing cases. Photographic reproductions of portions
of a copyrighted work, as can be performed by computer cut and paste, constitute
infringement. [130] For those who may conglomerate stolen images to create
an advertisement or catalog (e.g., small businesses), precedent exists for
making substantial similarity comparisons of these component images individually.
[131]
The tests for originality and infringement are different. [132] However,
in determining what types of image processing prevent works from being substantially
similar, courts may look at factors that have been considered in the context
of deciding whether a derivative work is copyrightable. Enlargement or reduction,
for instance, does not result in an "original" product even though
it involves the effort of artistic scaling. [133] Adding colors to a black
and white photograph, another image processing capability, may create a
copyrightable work depending on the extent and complexity of the colorization.
[134] Similarly, those who colorize films using a complicated process with
extensive color additions can copyright the film. [135] However, one cannot
copyright a film by changing it from color to black and white. [136]
Great time and effort expended in copying an artwork does not necessarily
make the result copyrightable. [137] The real test is whether the artist
used independent effort-preferably great independent skill beyond physical
skill or training. [138] Courts could use this test to distinguish between
"easy" image processing (inverting an image or changing a color
image to black and white), and, on the other end of the scale, "hard"
image processing (pixel- by-pixel manipulation or colorizing an image).
[139] While extensive "hard" image processing may produce an independently
copyrightable image by underhandedly building on and infringing another
image beyond the point of detection, courts can also consider the "tone
and mood" of a photograph in determining substantial similarity. [140]
2. PROBLEM #2: THE EASE AND SPEED OF COPYING
A second problem facing the use of the traditional method of analysis is
related to the quantity of alterations and the speed with which they can
be made. [141] These two factors permit the production of numerous sophisticated
altered copies, making multiple determinations of substantial similarity
cumbersome. As discussed, the traditional approach often involves two determinations
of substantial similarity: one for whether the defendant copied, and the
other for whether his or her copy was a fair use. [142]
C. The Fair Use Exception
1. APPLICABILITY TO IMAGE PROCESSING
A defendant found to have copied will attempt to escape liability by claiming
fair use. [143] Currently, no precedent clearly defines how material or
substantial a stolen fragment must be to constitute infringement. [144]
Considering that most still images are two dimensional, fixed to paper or
canvas, and do not exceed the size of a large painting, one could argue
that the copyrighted material is much more condensed than that in a book
or film, for instance. Given that comparison, an artist should be able to
protect even a small portion of his or her work. Such protection would deter
unauthorized image processing.
2. MARKETS AND IMPACT ON MARKETS
The most important consideration in evaluating fair use of copyrighted material
focuses on the impact of the infringement on the material's markets. [145]
Presumably the same markets exist for processed images as exist for the
unprocessed originals, including posters, magazines, books, art shows, art
galleries, museums, televesion, and film.
It is important to emphasize that banks, [146] manufacturers, [147] doctors,
[148] movie makers, [149] law enforcement agencies, [150] scientists, [151]
businessmen, [152] lawyers, [153] and publishers [154] engage in widespread
use of image processing technology. Commentators predict that, within the
next five years, large companies will use this technology for presentations,
archives, artwork and advertising files, communication systems, and security
in 20 to 25 percent of their facilities. [155] For the most part, these
uses do not create problems of copyright infringement. In the publishing
and computer industries, however, many ordinary situations breed problems.
[156]
A plaintiff must prove the effect of an unauthorized use of an image. Even
when a plaintiff cannot prove conclusively the impact of the infringement,
he or she can establish that the processed copy devalued the original. Because
of the copy, the plaintiff may not be able to market the copy for image
processing. Perhaps artists do not recognize the existence of a large future
electronic market for images and that "unauthorized distribution deprives
the copyright holder of any future gain through the electronic media."
[157] Newspapers are finding that using images from electronic stock houses
is cheaper than sending a staff photographer to take similar pictures. The
proliferation of these stock houses indicates that newspapers desire greater
access to these stock images. [158] National and international sales of
image processing equipment ranges into the billions of dollars. [159] One
million desk top publishing systems are currently in use. [160] The people
spending money on this equipment will need images to process.
Other potential markets for images include consumer information networks
and electronic services, which make innumerable files (including digitized
images) available to subscribers. [161] Presently, those who access these
services show no limit to the types of images that are desirable. [162]
These networks often use a copyright holder's image illegally and without
compensation. [163] This free access to an image affects the copyright holder's
ability to market the image to electronic stock houses.
Widespread distribution may also "wear out" and image. Abuse of
images by unlicensed scanning, processing, and electronic distribution could
make photography unprofitable. [164] Licensed electronic distribution, on
the other hand, could create a profitable market for images, encouraging
photography. Electronic use of scanned images could affect a copyright holder's
print market as well, [165] extending even to unlicensed use in T- shirt
making. [166]
A court will weigh all the factors considered in a fair use analysis. [167]
However, evidence that an illegally obtained copy affects the plaintiff's
market should weigh heavily against a defendant's claim of fair use.
V. A PROPOSED NEW COURT APPROACH TO COPYRIGHT INFRINGEMENT OF STILL IMAGES
A. Access
Digital scanning technology poses a unique problem. An infringer only needs
to have an original for a few minutes to successfully copy it. Additionally,
the prevalence of image processing and the inability to detect its use in
making copies makes image processing a potential hidden danger in all suits
over still images. The issue is one of proof. For purposes of this Comment,
I will assume access.
B. Professor Cohen's Approach
Courts have not resolved the problems of determining substantial similarity.
Professor Amy Cohen, however, has proposed a new two-step test, revising
the traditional approach of courts. [168]
The first step requires a determination of proof of copying. [169] This
step focuses solely on specific similarities between the works and whether
or not these similarities constitute ideas or expressions. [170] In other
words, the trier of fact makes a determination of substantial similarity
and does not consider the quantity of material copied. [171]
If similarities exist, the trier of fact then determines whether they are
the result of copying. The degree to which similarities between the works
indicates that copying occurred depends on several factors, including the
type of subject (there is not much room for variation in a photograph of
a famous subject, thus many similarities would have to be shown), [172]
the extent of duplication of errors, [173] and whether the similarities
are verbatim (there is little chance that verbatim errors are not copied).
[174] The trier of fact also considers the defendant's access to the work.
For instance, one can infer access from strikingly similar aspects. A positive
determination of copying creates a prima facie case of infringement. [175]
The Ninth Circuit recently adopted an objective test of similarity of expression
and idea as it pertained to literary works. In Shaw v. Lindheim, [176] the
court changed the Krofft test for literary works so that an objective analysis
of expression was included with an objective analysis of idea. Furthermore,
Shaw identified eight objective components of expression which compose literary
works. [177]
Once the plaintiff establishes a prima facie case of infringement under
Cohen's test, the second step requires an analysis of the justification
offered for the copying which parallels the fair use analysis. The burden
shifts to the defendant to prove justification. This analysis starts with
the extent of the similarities found in step one. [178] The trier of fact
must then make a subjective determination [179] of the extent of the injuries
and consider the factors governing fair use. [180] This determination weighs
the purpose and character of the defendant's use, the nature of the copyrighted
work, the social desirability of defendant's use, and the effect on the
market for, or value of, the plaintiff's work. [181]
C. Modifying Cohen's Approach for Image Processing
Cohen's approach to determining substantial similarity does not adequately
deal with image processing. However, a new approach to copyright infringement
for still images could utilize the Cohen approach in a modified form. This
proposed approach divides Cohen's first step into two parts, essentially
adding an initial question to be asked prior to entering Cohen's proof of
copying analysis.
The new first part would require the trier to determine whether, in comparing
the two images, an ordinary observer would find that any part of the defendant's
image is a copy of the plaintiff's image. This approach uses the ordinary
observer test in its most basic sense, without explanation of idea or expression
or a prolonged dissection of the photograph. "Copy" is defined
as any similarity between the images which appears to be exact or nearly
exact.
The new second part of this first step would retain Cohen's proof of copying
analysis (i.e. all of her first step). However, the modified test would
require the burden of proof for the copying analysis to shift if the plaintiff
prevailed on the first step. Thus, the defendant must prove that he or she
did not copy.
The second step in this new approach remains as Cohen proposed. If a prima
facie case of copying results from step one, then the defendant must show
justification for the copying.
D. Justifying the New Approach: Why it Will Work
Adding an initial ordinary observer test to Cohen's approach is not an insignificant
modification. Many implications result.
First, as proposed, the ordinary observer does not compare the images as
balanced wholes, but is allowed to find similarity in parts of the images.
This prevents those who steal small but identifiable parts of an image from
escaping the effect of this initial test.
Second, as proposed, the ordinary observer would make a positive initial
finding of similarity only if the similarity is exact or nearly so. This
allows defendants with photographs which fall into the comprehensive nonliteral
similarity category to escape the test without the burden of proof shifting
to them. In other words, defendants would not lose any of the protections
that copyright law currently affords them.
Once the trier of fact decides that the defendant made an "exact"
copy of an element or elements of a plaintiff's photograph, the defendant
will have the burden of proving that he or she did not infringe. Defendants
with photographs in the fragmented literal similarity category should usually
fail this initial test. This may result in more defendants bearing the burden
of proof than may deserve. However, those defendants who fail to pass the
initial test because their subject is famous or popular should not be adversely
affected. In such a case, the following proposed step-the detailed substantial
similarity determination with an explanation of the idea/expression dichotomy
(Cohen's step one)-will prevent a miscarriage of justice.
The proposed initial ordinary observer test targets only those who have
used an image processor without troubling to completely disguise their sophisticated
pixel-by-pixel manipulation, no matter how small the theft. However, this
applies equally to those who use a camera, pen, or paintbrush to steal expression.
[182]
In cases where the defendant stole an apparently insignificant part, this
test does nothing to prejudice the defendant's ability to argue that he
or she did not copy, although it forces the defendant to make that affirmative
argument. Of course, the defendant may also argue fair use. The burden of
proof remains with the defendant to prove fair use.
Shifting the burden of proof where the trier finds obvious copying, even
if minute, is justifiable. Few cases result from photograph infringements
because litigation is not currently viable, not because infringement does
not exist. It is very tempting to steal copyrighted images. [183] The cost
and trouble of suing individual infringers protects infringers. [184] With
insufficient protection for a photographer's work in a mass infringement
context, photographers lack economic incentive to enter or remain in the
profession. [185] Therefore, shifting the burden of proof, in cases where
copying is patently obvious, makes it easier for a plaintiff to protect
his or her rights. Otherwise, image processing will greatly reduce the value
of copyrighting an image.
Additional reasons justify the proposed new approach. Initially, the capabilities
of image processors made substantial similarity determinations complex,
[186] and Cohen's approach avoids duplicative determinations of substantial
similarity. [187] It streamlines the litigation process to allow for more
lawsuits. Furthermore, the suggested addition to Cohen's test addresses
the problem of the ease, quantity, and quickness with which those seeking
to infringe a copyrighted image can do so with an image processor.
E. A Hypothetical Example
A hypothetical situation illustrates more clearly the need for an approach
beyond that of Cohen. My hypothetical consists of three photographs, one
original and two copies. The location of all three photos is Tienamen Square
in China. I assume that the plaintiff can easily prove access and that the
copies have been scanned and processed. Copying is the issue.
The original photograph shows a student with a distinctive face and a soldier
with a distinctive face. The soldier is bayoneting the student with his
rifle. The background in the square includes other students, other soldiers,
tanks, and smoke. This photo contains news value.
The first copy shows the same soldier bayoneting the same student. In the
background of this photograph, however, all the smoke, tanks and other students
and soldiers have been processed out to give the appearance of an otherwise
empty square. Crying children in choir robes have been inserted by cut and
paste, creating a symbolic and surreal new photograph. The photograph has
lost its news value.
The second copy shows a student and soldier whose faces have been changed
using sophisticated pixel-by-pixel manipulation of the original image. Additionally,
the technician processed the bayonet out of the photograph, thus giving
the appearance that the soldier is shooting the student at close range.
The background in the square is the same as in the original except that
it has been subtly altered to add or remove some students, soldiers, tanks,
and smoke. The photograph retains its news value.
When the proposed new test is applied to the hypothetical, the first copy
described above would run afoul of part one of step one. The obvious copying
of part of the original photograph (the soldier and student with their poses
exactly the same) would shift the burden on the defendant to prove he or
she did not copy. The first copy communicates a distinctly different concept
than the original (symbolic versus documentary), but the expression is the
same (the original photographer's timing, choice of subjects, angle, etc.).
This copy illustrates fragmented literal similarity. Moreover, because relatively
simple image processing could produce this photograph, the infringer produced
the copy rather easily.
The defendant will probably also lose at step two because the extent of
similarities outweighs the distinctions. This copy probably fills a potential
market for the photo, making it a poor candidate for the fair-use exception.
The second copy probably elicits a "no" answer from the question
in part one of step one because nothing is exactly the same between the
photographs. This copy embodies a comprehensive non-literal similarity.
The defendant can argue that the plaintiff cannot protect the idea of photographing
student protests and that individual expressive components of the copy are
different from the plaintiff's original. Here the dissimilarity results
from the defendant's "hard" [188] (pixel-by-pixel), albeit underhanded,
image processing. This perhaps translates into independent original effort.
But, while computerized equipment enables the defendant to "piggyback"
upon the plaintiff at will, the defendant should produce something sufficiently
"original" to pass an exacting ordinary observer test. This puts
would-be infringers to the task of making a large number of "hard"
changes to escape liability for image theft. The number of changes necessary
will rise in proportion to the uniqueness of the plaintiff's image. For
this second photograph, because of the infamy of the plaintiff's subject,
the test requires many exacting similarities in order to prove infringement.
Step two presents problems for both the plaintiff and the defendant. The
defendant is impacting the plaintiff's market, but, on the other hand, the
extent of the similarity between the defendant's and the plaintiff's photographs
is small.
The maker of the first copy is easily caught under the new test. However,
it is difficult to prove, even with the new test, that the second copy resulted
from infringement. The new test forces the defendant to substantially alter
the details of the photograph. The defendant ultimately steals mostly idea
elements, even though his or her action is underhanded. The defendant knows
that if he or she processes the plaintiff's expressive elements out of the
infringing photograph, the plaintiff's loss of elements protected by copyright
is minimized.
The hypothetical situation illustrates that computer image processing technology
provides new opportunities for copyright infringement and presents new challenges
to legal procedures, especially to insure the protection of original work.
VI. IMAGE PROCESSING COMPARED WITH DIGITAL SAMPLING
Digital scanning and image processing are the still image equivalents to
digital sound sampling in music. "Digital sound sampling is a technique
by which distinctive vocal or instrumental sounds may be recorded, analyzed
and then played back to perform a song never actually executed by the original
musician." [189] The music industry often uses sampling to increase
artistic flexibility and eliminate the need for back-up musicians. [190]
However, digital sampling in the music field results in more copyright infringements,
more privacy for infringers, and more public acceptance of unauthorized
copying. [191] Image processing has the same effect on the use of still
images.
Digital music sampling, like digital scanning and image processing, uses
affordable digital technology. [192] The sampling is done using digital
audio tape machines (DATs). [193] Unlike still images, however, special
codes can be integrated into songs. Pending legislation would incorporate
into DATs an electronic computer chip which recognizes these special codes
and prevents sampling from encoded songs. [194] Still images cannot be so
encoded because the public generally does not access still images in digital
form, and after they have been digitized and processed, they are usually
outputted to a non-digital form.
Another important parallel between digital sampling and image processing
is the problem of determining how much of a taking is a substantial or material
theft. Courts have found as little as a six-note taking substantial. [195]
This inquiry necessarily involves qualitative as well as quantitative weighing.
[196] A California district court established that sampled sounds must be
recognizable as being from the same performance that is carrying copyright
protection. [197] This standard is transferred easily to the arena of image
processing. It is probably unnecessary, however, due to the fact that an
observer would not be able to find copying in a small stolen fragment of
an image if it were not recognizable as being from the copyrighted source.
The threat that DATs have posed to music copyrights parallels the threat
image processing and digital scanning pose to still-image copyrights.
VII. THE NEED FOR A NATIONAL REGISTRY TO COLLECT ROYALTIES AND PROTECT ARTISTS
Two organizations, the American Society for Composers, Authors and Publishers
(ASCAP) and Broadcast Music Inc. (BMI), exist to license performances of
their members' copyrighted material and distribute the collected royalties
to those members. ASCAP currently has 45,000 members. [198] ASCAP and BMI
keep track of the multitude of songs their registered members own and make
big business out of collecting and distributing royalties for them. BMI
claimed a gross income of approximately 250 million dollars in 1988. [199]
For publishers, a Copyright Clearing Center functions like ASCAP to monitor
photocopying of copyrighted works and collect royalties. [200] This organization,
formed in 1977, now represents 1,400 publishing organizations and their
110,000 publications. [201] For the month of June, 1988, the Center distributed
one million dollars in royalties to its members. [202]
Computer users who want to digitize and process images have suggested that
ASCAP and BMI "could be good models for the [graphic arts] industry
to follow." [203] The fact that those who are potentially responsible
for most of the copyright infringement through image processing are calling
for an artists' organization makes the great urgency of the situation apparent.
[204] In the absence of an organization to collect royalties, image processors
are forced to steal images for want of someone to compensate for the use
of those images.
Photography, painting, and graphic design are professions. As professionals,
artists and their works are easily recognized and can be registered to form
an organization like ASCAP, BMI, or the Copyright Clearing Center. The existence
of ASCAP-type organizations proves their economic viability. Artists need
an organization for the licensing of still images to allow them to profit
fully from their works.
VIII. CONCLUSION
Courts need to modify copyright law to confront technological advances.
The ordinary observer test, in its new proposed form that burdens copyright
infringers with the problems of proof, would protect original work by providing
some counterbalance to new, powerful and threatening computer technology.
This proposal calls for the abandonment of the ordinary observer test to
determine copying in an image and advocates a more critical comparison of
expressive elements. Courts must streamline the traditional approach to
copyright infringement determinations by eliminating duplicative legal determinations.
Without change, computers will outstrip courts' ability to judiciously handle
copyright infringement suits involving images. Because image processing
and digital scanning have the potential to upset continued profitable still
image production in much the same way that digital sampling has upset the
music industry, it has become imperative for artists to form an artists'
organization to register and collect royalties for still images.