Footnotes: Seecof

Back to Main Text


1. Spalding & Dawson, Finding the Titanic, BYTE, Mar. 1986, at 96, 110.

2. Birkmaier, SV High and Low, AUDIO-VISUAL COMM., Mar. 1989, at 28, 28.

3. A computer user may create an image from "scratch" by using the computer program to directly generate each element of his or her art work. Hanselman & Gordon, New Library of Software Packages Advances Image Processing, GRAPHIC ARTS MONTHLY, Mar. 1985, at 116, 116.

4. Abernathy & Weiss, Gray Expectations, MACUSER, June 1989, at 170, 170.

5. Id. Basically, a scanner records a two dimensional image in computer memory using the same technology that a digital audio tape uses to record sound. See infra text accompanying notes 188-195.

6. Streano, Retouching History?, PUB. REL. J., Mar. 1986, at 8, 8; Garneau, Laser-based Electronic Cameras: Some Newspapers Praise Them, Others Can't Afford Them, EDITOR & PUBLISHER, Nov. 5, 1988, at 18P.

7. One Kodak CCD (charge-coupled device) has a resolution of 1.4 million picture elements (pixels). Galluzzo, Kodak Breaks Million Pixel Barrier with New Image Sensor, MODERN PHOTOGRAPHY, Sept. 1986, at 28. A CCD is a device which produces an electrical voltage in relation to the type and amount of light striking it. Id.

8. Fax machines use scanners to capture and convert images to digital signals and then send those images over telephone lines to a computer or another fax machine. Fitzpatrick, Facts About Fax, 43 J.AM. SOC'Y CLU & CHFC 15, 15 (1989).

9. "Resolution-the maximum number of pixels that a scanner can fit into an inch. The higher the resolution, the more fine details you can see in an image." This is usually expressed in dots per inch (dpi), where a dot is the equivalent of a pixel. Abernathy & Weiss, supra note 4, at 170. "Resolution: In image processing, the number of bits of accuracy or number of gray levels that can be represented in a pixel; for example, 8 bits = 256 levels, 6 bit = 64 levels." Spalding & Dawson, supra note 1, at 110. "Pixel: The smallest unit of storage in a digital image.... " Id.

10. Pixels number in the millions, depending on the system, and each pixel element can be individually signaled for color and brightness. Streano, supra note 6, at 8.

11. Video images may also be digitized for computer using an imaging board. Spiegelman, AST Board Eases Process of Bringing Images from Video Camera to Mac II, PC WEEK, Aug. 15, 1988, at 18.

12. See Hanselman & Gordon, supra note 3, at 116.

13. Star, Introduction to Image Processing, BYTE, Feb. 1985, at 163, 164. The capabilities of these programs will be discussed infra at text accompanying notes 16-25.

14. Hanselman & Gordon, supra note 3, at 118.

15. Id.; Antonoff, Image Capture for Business, PERSONAL COMPUTING, Apr. 27, 1990, at 101, 101-102.

16. Hanselman & Gordon, supra note 3; Thompson, Industrial-Strength Color Processing, BYTE, Apr. 1989, at 97; Dawson, Doing It Digitally, AUDIO-VISUAL COMM., Feb. 1988, at 19; XEROX-IMAGING; (XRX) Xerox Imaging Systems to Market Electronic Darkroom for Desktop Publishing on IBM PC and PS/2 Platforms, BUS. WIRE, Sept. 12, 1989; Sussman, Graphics Software Traces Scanned Objects, PC WEEK, Mar. 1, 1988, at 19; Fiderio, The Electronic Darkroom, BYTE, Mar. 1989, at 104; Streano, supra note 6; Brand, Kelly & Kinney, Digital Retouching, WHOLE EARTH REV., July 1985, at 42.

17. Streano, supra note 6, at 8; see also Brand, Kelly & Kinney, supra note 16.

18. Hanselman and Gordon, supra note 3, at 118.

19. Spiegelman, supra note 11; Picarille, Color Highlights Graphics Show: New Releases Allow Color Separations, Video Imaging, PC WEEK, Apr. 24, 1989, at 23, 30.
20. Streano, supra note 6, at 8; Reveaux, I Second That Emulsion, MACUSER, Jan. 1989, at 201, 202; Brand, Kelly & Kinney, supra note 16, at 42.

21. See, e.g., Hanselman & Gordon, supra note 3, at 118.

22. Streano, supra note 6, at 8. A photograph in the San Jose Mercury News appeared to show Michael Dukakis surrounded by George Bush, Jesse Jackson, and Ronald Reagan at a dais displaying a Dukakis-Bush campaign poster. The photograph had been altered. Heads had been brought in from other photographs, the poster's lettering had been reversed and changed, Dukakis' watch had been moved, and his daughter's and wife's jacket colors switched. Rosenburg, Computers, Photographs and Ethics, EDITOR & PUBLISHER, Apr. 8, 1989, at 40, 40.

23. Streano, supra note 6, at 8; see also Brand, Kelly & Kinney, supra note 16.

24. Brand, Kelly & Kinney, supra note 16. Photorealistic models can be created on a computer. Brown & Verity, The Graphics Revolution, BUS. WEEK, Nov. 28, 1988, at 142, 143. Computers can be programmed to put correct shadows, calculated from an imaginary light source, into images. Sherman, The Latest Generation of Computers Can Generate Images that Will Help Us in Future Generations, MODERN PHOTOGRAPHY, Jan. 1985, at 20, 21. Recently in Los Angeles, a man was accused of creating $100 million worth of fake art, including fake Renoirs, and bilking art investors out of millions. It is possible to spot such a fake, but "it often takes an expert who's been around for 30 years to determine ... whether a color sequence is wrong." Some of the fakes were "produced with sophisticated and costly laser scanning equipment that can 'duplicate prints with a margin of error that is very slim." Sahagun & Woodyard, Art Fraud Suspect's Bail Cut, L.A. Times, Sept. 30, 1989, s 2 (Metro), at 3, col. 2. It seems this scanning equipment, even though costly, was put to profitable use. The scanned images were transferred to a lithograph plate or silkscreen process after they were scanned. Id.

25. Brand, Kelly & Kinney, supra note 16, at 43. (The pyramids were moved in the Feb. 1982 edition of National Geographic Magazine). In National Geographic Magazine, April 1982, a hat was added to the person on the cover. Id. In December 1983, Popular Science substituted the background from one photo for the background of the cover photograph. Id. at 46. In The New York Times Magazine, April 1983, a technician electronically filled a photograph with shrubbery. The New York Times claimed it did not notice until later. Id. In the cover photo of one issue of Rolling Stone Magazine, Miami Vice's Don Johnson's pistol and shoulder holster were electronically removed. Seymour, Let Me Scan Just This One Picture, PC, Jan. 12, 1988, at 77, 77.

26. Birkmaier, supra note 2, at 37.

27. Id.

28. Picarille, supra note 19, at 30.
29. Id.

30. Id.

31. Sahagun & Woodyard, supra note 24.

32. Id.

33. Hanselman & Gordon, supra note 3, at 122.

34. Rosenburg, Digital Transmission of Photos, EDITOR & PUBLISHER, Nov. 5, 1988, at 14P.

35. Fitzpatrick, supra note 8, at 15.

36. Abernathy & Weiss, supra note 4, at 172.

37. Brown & Verity, supra note 24, at 144.

38. Id.

39. MacVision software was introduced at $399. Miley, Big Frame Hunters, MACUSER, Mar. 1989, at 35, 35. GraphistPaint II was priced at $495. Martinez, GraphistPaint II, MACUSER, Apr. 1989, at 45, 45. Picture Publisher was priced at $595. Thompson, supra note 16, at 97. PhotoMac was priced at $695. Fiderio, supra note 16, at 105. Image Studio 1.5 was priced at $495. Reveaux, supra note 20, at 208. Digital Darkroom 1.0 was priced at $295. Id.

40. Hammonds, These Desktops are Rewriting the Book on Publishing, BUS. WEEK, Nov. 28, 1988, at 142, 142.

41. Brown & Verity, supra note 24, at 143.

42. Id. at 144.

43. Kodak Unveils New Products for the Imaging System of Today ...and Tomorrow, BUS.WIRE, June 13, 1989.

44. Putting Byte into Billboards, TIME, May 11, 1987, at 57, 57.

45. Hammonds, supra note 40, at 156.

46. See supra text accompanying note 25.

47. Streano, supra note 6, at 8.

48. Id.

49. "The National Press Photographers Association conference was concerned with technical aspects, ethical questions and managerial ... impact of computerized handling of photography. For its consideration of technology and ethics, the meeting probably produced no more agreement on ethical standards than now exists on technical standards." Rosenburg, supra note 34, at 40.

50. Streano, supra note 6, at 8. Legal remedies exist for false advertising and unfair competition. However, these only serve as outer boundaries in delineating ethical considerations and are only available if the harmed party is willing to resort to litigation.

51. Seymour, supra note 25.

52. Shapiro, The Devils Desktop Publishing Dictionary, MACWEEK, Oct. 25, 1988, at 102. "Clip art", prior to the computer age, referred to art that graphic artists clipped out of printed sources with scissors for use in their own artwork. In the computer context, clip art is a variation of the same thing except the artwork first must be digitized. A large market exists for selling volumes of digitized images on computer disk or "clip-art packages" for use in desktop publishing. Raskin, PC-based Clip Art: Instant Images, PC MAGAZINE, Oct. 17, 1989, at 149.

53. Shapiro, Copywrongs on Consumer Info Networks? Posting of Scanned Images on Electronic Services Infringes Copyrights, MACWEEK, Aug. 30, 1988, at 20, 20. DIALOG is an accessible computer database which contains TRADEMARKSCAN (graphic representations of trademarks digitized from the Official Gazette of the U.S. Patent and Trademark Office available with accompanying text of applications and registrations). Chadwick, Dialog Comments on Imaging Capabilities: An Interview with Fred Zappert, ONLINE, May 1989, at 28; Thompson, DIALOGLINK and TRADEMARKSCAN-Federal: Pioneers in Online Images, ONLINE, May 1989, at 15. Using TRADEMARKSCAN, "[b]usiness users can compile and monitor portfolios of their own and competitors' trademarks." Id. at 21. Obviously, users can also use it to steal or infringe trademarks!

54. Shapiro, supra note 53, at 20.

55. Id. at 23.

56. Id.

57. Id.

58. Id. In short, the fair use doctrine allows a defendant who has copied a work to escape liability if he has not copied a substantial portion of the work or if his copy fulfills a different function from that of the plaintiff's work. For a more detailed discussion of the fair use doctrine, see infra text accompanying notes 91-97.

59. See Rosenthal, Use an Image, Prepare for a Shootout, MACWEEK, June 13, 1989, at 16.

60. See, e.g., id.; Seymour, supra note 25; Shapiro, supra note 53.

61. Compare Coale, Setting up Shop, MAC USER, Oct. 1988, at 275, 279 (recommending use of a scanner) with Rosenthal, supra note 59, at 16 (warning of danger of using scanned images). Computer pornographers, although faced with the very sensitive issue of distributing obscene material, are "far more concerned about the copyright violations involved in the scanning and distribution of nudes [than in the pornography issue]." Lander, It Was Bound to Happen: Sex Enters Computer Age, NEWSDAY, Feb. 26, 1989, at 75.

62. Hammonds, supra note 40, at 154.

63. Beamer, OmniPage makes OCR a Snap, MACWEEK, Nov. 22, 1988, at 42.

64. See Streano, supra note 6, at 10.

65. Seymour, supra note 25, at 77-78.

66. Shapiro, More on Copyright, MACWEEK, Oct. 11, 1988, at 27, 27. Authors of visual works have also attempted to preserve the integrity of their works even where they no longer hold the copyright. For example, the Director's Guild maintains, and a federal report found, that alteration and colorization of films has adverse effects on films and injures the reputation of directors. Honan, Federal Report Criticizes the Coloring of Films, N.Y. Times, Mar. 16, 1989, Business, at C22, col. 1. This problem is known as the "moral rights issue" and has been a growing issue in art in recent years. Artists claim to hold the moral rights of paternity and integrity in the work that they create. Artists, when they do not own or have sold the copyright to their creations, often seek to assert these moral rights when those creations are threatened with alteration. See generally Verbit, Moral Rights and Section 43(a) of the Lanham Act: Oasis or Illusion?, 9 COMM/ENT L. J. 383 (1987).

67. Streano, supra note 6, at 10.

68. See Cohen, Masking Copyright Decisionmaking: The Meaninglessness of Substantial Similarity, 20 U.C. DAVIS L. REV. 719, 728 (1987).

69. Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) ("Because copiers are rarely caught red-handed, copying has traditionally been proven circumstantially by proof of access and substantial similarity."); see Cohen supra note 68, at 728.

70. Cohen, supra note 68, at 728.

71. 17 U.S.C. s 103 (1988); M. NIMMER, NIMMER ON COPYRIGHT, s 13.03[A] (1988). For further discussion, see infra text accompanying notes 80-82.

72. Cohen, supra note 68, at 730.

73. M. NIMMER, supra note 71, s 13.03[A]; see also Cohen, supra note 68, at 731.

74. 17 U.S.C. s 107 (1988); see also Cohen, supra note 68, at 731.

75. 17 U.S.C. s 103 (1988); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

76. M. NIMMER, supra note 71, s 2.08 [E][1].

77. Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir. 1983); M. NIMMER, supra note 71, s 2.08[E].

78. Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130 (S.D.N.Y. 1968) (a sketch of the subject photograph would have been an infringing copy except that it was judged a fair use).

79. M. NIMMER, supra note 71, ss 8.01[D], 2.18[H][2]; see also Burrow- Giles Lithographic, 111 U.S. at 60; Pagano v. Chas. Beseler Co., 234 F. 963, 964 (S.D.N.Y. 1916); Edison v. Lubin, Pa., 122 F. 240, 242 (C.C.A.Pa. 1903); Bernard Geis Assoc., 293 F. Supp. at 143.

80. M. NIMMER, supra note 71, s 13.03[A].

81. Id.

82. Id.

83. Id.

84. Id. s 13.03[A][1]; see also Sheldon v. Metro-Goldwyn Pictures, Corp., 81 F.2d 49 (2d Cir. 1936) (judging substantial similarity with respect to the whole of the copied portions, including non-copyrightable elements).

85. Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930); M. NIMMER, supra note 71, s 13.03[A][1].

86. M. NIMMER, supra note 71, s 13.03[A][2]; see also Alexander v. Haley, 460 F. Supp. 40 (S.D.N.Y. 1978) (trial court excluded scenes common to depictions of slavery, and once these scenes were eliminated found the works were not substantially similar).

87. M. NIMMER, supra note 71, s 13.03[A][2].

88. Id. s 13.03[B]; see Sheldon, 81 F.2d at 56 ("no plagiarist can excuse the wrong by showing how much of his work he did not pirate").

89. M. NIMMER, supra note 71, s 13.03 [E][1].

90. Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 513 (1945).
91. 17 U.S.C. s 107 (1988); see also M. NIMMER, supra note 71, ss 13.05 [A], [B].

92. 17 U.S.C. s 107 (1988).

93. Id.

94. Id.

95. Id.

96. Hustler Magazine v. Haberman, 626 F. Supp. 201 (D. Mass. 1986).

97. M. NIMMER, supra note 71, s 13.05 [A][4]; Harper & Row v. Nation Enters., 471 U.S. 539 (1985); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).

98. Cohen, supra note 68, at 741-49.

99. Id.

100. Id. at 735-47.

101. 154 F.2d 464 (2d Cir. 1946).

102. Id.; see M. NIMMER, supra note 71, s 13.03 [E][3]; Cohen, supra note 68, at 731.

103. Arnstein, 154 F.2d at 468-70; see M. NIMMER, supra note 71, s 13.03 [E][3]; Cohen, supra note 68, at 731.

104. Arnstein, 154 F.2d at 472-73; see M. NIMMER, supra note 71, s 13.03 [E][3]; Cohen, supra note 68, at 731.

105. See M. NIMMER, supra note 71, s 13.03 [E][3]; Cohen, supra note 68, at 732.

106. 562 F.2d 1157 (9th Cir. 1977).

107. Krofft, 562 F.2d 1164; see M. NIMMER, supra note 71, s 13.03 [E][3].

108. Krofft, 562 F.2d 1164; see M. NIMMER, supra note 71, s 13.03 [E][3].

109. Krofft, 562 F.2d 1164; see M. NIMMER, supra note 71, s 13.03 [E][3].

110. Cohen, supra note 68, at 755.

111. Id. at 757.

112. M. NIMMER, supra note 71, s 13.03 [E][2].

113. Id.

114. Cohen, supra note 68, at 739.

115. Id. at 737 & n.66.

116. See supra text accompanying notes 16-25.

117. See supra text accompanying note 90.

118. See supra text accompanying notes 75-79.

119. 575 F.2d 62 (3d Cir. 1978).

120. Id. at 64 (quoting Chafee, supra note 90, at 505).

121. Id. at 66 (emphasis added).

122. 623 F. Supp. 511 (S.D.N.Y. 1985).

123. 366 F. Supp. 977 (M.D. Pa. 1973).

124. 228 F. Supp. 630 (D.N.J. 1964).

125. Foreign Car Parts, 366 F. Supp. at 977.

126. Hedeman, 228 F. Supp. at 631.

127. 213 U.S.P.Q. 1008 (S.D.N.Y. 1981); 1978-81 Copr.L.Dec. P 25,248.

128. Related questions of fair use are discussed infra at text accompanying note 143.

129. Mazer v. Stein, 347 U.S. 201, 218 (1954).

130. Sub-contractors Register v. McGovern's Contractors and Builders Manual, 69 F. Supp. 507, 510 (S.D.N.Y. 1946).

131. "In mail-order catalog copyright infringement actions, the court must look not to the substantial similarity of the entire catalog, but at the substantial similarity of the very small amount of protectable parts." Haan Crafts Corp. v. Craft Masters, Inc., 683 F. Supp. 1234, 1243 (N.D. Ind. 1988).

132. See, e.g., Sargent v. Am. Greetings Corp., 588 F. Supp. 912, 918 (N.D. Ohio 1984). "A work which makes non-trivial contributions to an existing one may be copyrighted as a derivative work and yet, because it retains the "same aesthetic appeal" as the original, render the holder liable for infringement of the original copyright." Id.

133. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976).

134. Compare Sargent, 588 F. Supp. at 919 (whether plaintiff's coloring of defendant's line drawings was itself entitled to copyright protection presented a genuine issue of fact) with Hearn v. Meyer, 664 F. Supp. 832 (plaintiff's coloring of well-known public domain images not independently copyrightable).

135. 52 Fed. Reg. 23,443 (1987) (to be codified at 37 C.F.R. s 202) (proposed June 22, 1987).

136. Storm v. Kennington, Ltd., Inc., 223 U.S.P.Q. 790 (N.D. Cal. 1984).

137. Hearn, 664 F. Supp. at 839. Note that time is not an overwhelming factor in image processing.

138. Sargent 588 F. Supp. at 919; M. NIMMER, supra note 71, s 2.08[C][2].

139. In Hearn, the court found that huge amounts of time, effort, and craft did not constitute originality. Hearn, 664 F. Supp. at 839.

140. Kisch v. Ammirati & Puris, Inc., 657 F. Supp. 380, 384 (S.D.N.Y. 1987).

141. See supra text accompanying notes 16-25, 43-45.

142. See supra text accompanying note 100.

143. See supra text accompanying notes 91-97.

144. See supra text accompanying notes 123-129.

145. See supra text accompanying notes 91-97.

146. Banks scan, store, transfer, and electronically compare signatures. Signature Verification Products, COMPUTERS IN BANKING, May 1989, at 96; Database Incorporates Photos, Text, PC WEEK, Mar. 1, 1988, at 28. A fax of a signature can be sent to a remote computer and compared with another signature in order to verify it for contracts, checks, or other documents. Fitzpatrick, supra note 8, at 15. Banks handle checks electronically after scanning them. Kantrow, Electronic Check Handling Seen for 90's: Poll Finds 86% of Bankers Interested in Image Processing, AM. BANKER, Apr. 19, 1989, at 6. Many financial institutions scan credit receipts to prevent fraud and improve billing. Brown & Verity, supra note 24, at 145. Moran, Bank Finds Imaging System Pays Its Way, COMPUTERWORLD, May 1, 1989, at 25.

147. Manufacturers scan and combine images into text files and then they can transfer the combined files between computers for parts inventories and quality control. Database Incorporates Photos, Text, supra note 146. Technicians using electronic access to engineer drawings can improve worker productivity. Brown & Verity, supra note 24, at 145.

148. Database Incorporates Photos, Text, supra note 146.

149. Future actors will be able to move in front of computer generated landscapes. Kemp, Personal FX, DISCOVER, Nov. 1988, at 74, 74. Film colorization is another use for image processing. Id. at 76. In film and video studios producers use scanning techniques to animate cartoons and models, manipulate live action, and create special effects. In time computers will be programmed to make feature length films. Brown & Verity, supra note 24, at 143.

150. Police can digitize and manipulate mug shots for viewing by victims. Housman, Boston Police Take Mug Books Electronic, PC-COMPUTING, Sept. 1989. They also scan and electronically compare fingerprints. Jovanovitch, Matching Technology to Police Needs, N.Y. times, Aug. 13, 1989, s 12, at 23, col. 1.

151. Scientist can decipher ancient writings through image processing. Stoll, Scholars Use PCs to Decipher Ancient Writings, PC WEEK, May 6, 1986, at 170. Researchers digitized and then enhanced degraded photographs to help locate the Titanic. Spalding & Dawson, supra note 1, at 102.

152. Antonoff, supra note 15. Digital scanning is used to create electronic filing cabinets in offices. Brown & Verity, supra note 24, at 144.

153. Fast Document Retrieval, PC WEEK, Aug. 28, 1989, at 76. Tangentially- "Photography has no place in ... any ... courtroom. For that matter, neither does film, videotape, or audio tape, in case [a party] plans to introduce in evidence other media susceptible to digital retouching." Brand, Kelly & Kinney, supra note 16, at 42.

154. Color Systems for Design and Production, THE SEYBOLD REP. ON PUBLISHING SYSTEMS, May 23, 1988, at 4. Image processing has made color proofing, previously a problem in newspaper publishing, easy because the photos are digitally stored and are easily adjusted and previewed. Esler, Color Proofing, GRAPHIC ARTS MONTHLY, Feb. 1989, at 44; DDCP System: A Preview, GRAPHIC ARTS MONTHLY, AND THE PRINTING INDUSTRY, Feb. 1989, at 90; Rosenberg, Digital Color Proofing, EDITOR & PUBLISHER, Sept 24, 1988, at 32C. Publishers use image scanning for newsgathering by digitizing photos and transmitting them all over the world. Miller, A Letter from the Publisher, TIME, Sept. 7, 1987, at 4; Sharbutt, Shots Seen Round World Via Phone Line, L.A. Times, June 7, 1989, pt. 6 (Calendar), at 1, col. 6.

155. Electronic Still Imaging to Gross $540M in 1992, EDN, July 7, 1988, at 315, 315.

156. See supra text accompanying notes 46-67.

157. Shapiro, supra note 66, at 27.
158. Rosenburg, Servicing the Photo Customer, EDITOR & PUBLISHER, Apr. 8, 1989, at 58, 58. Electronic stock photo agencies sell digitized photos. A low resolution version of the image (with the name of the photographer) is transmitted to the consumer as a preview; the agency transmits a high resolution image once the consumer has bought rights to the image. Streano, supra note 6, at 9.

159. Brown & Verity, supra note 24, at 143. 1988 shipments of hardware and software used in computer graphics systems equaled $9.1 billion, and are expected to grow to $27 billion by 1993. Id. Identified markets for images include real estate, retail, publishing, corporate, law enforcement, consumer, and government. The international market for still imaging equipment (equipment which processes and produces electronic still images) was estimated at $68.5 million in 1988, and predicted to grow to $542.6 million in 1992. Electronic Still Imaging to Gross $540M in 1992, supra note 155, at 315. Combined U.S. sales of image processing equipment are estimated to grow from $1.02 billion in 1988 to $1.58 billion in 1990. Lineback, How Long Will It Take Image Processing to Blast Off, ELECTRONICS, Feb. 19, 1987, at 65, 66; see also supra text accompanying notes 145-154.

160. Hammonds, supra note 40, at 154.

161. See supra text accompanying note 53.

162. Images from copyrighted and trademarked sources, ranging from M.C. Escher illustrations or Sports Illustrated and Playboy Magazine photographs to trademarked images of Mickey Mouse and Jessica Rabbit, show up on these networks. Shapiro, supra note 53, at 20.

163. See supra text accompanying notes 53-58.

164. Streano, supra note 6, at 10.

165. There is a large market for computer games, including computer pornography. One example is MacPlaymate, a computer game where the player can have simulated sex with a computer image. Playboy Magazine is currently suing the makers of this game for trademark infringement over the game's name, rather than suing over its content. Lander, supra note 61. However, it is possible that a person would buy the game rather than the magazine where the images were the same, making a copyright infringement action a real possibility.

166. Antonoff, Not for Lasers Only, PERSONAL COMPUTING, Aug. 1989, at 59, 62.

167. See supra text accompanying notes 91-97.

168. Cohen, supra note 68.

169. Id. at 758.

170. Id.

171. Id.

172. Id. at 759 & n.137.

173. Id. at 759 & n.139.

174. Id. at 759 & n.138.

175. Id. at 760.

176. 908 F.2d 531 (9th Cir. 1990).

177. Id. at 539.

178. Cohen, supra note 68, at 760.

179. Id. at 761.

180. Id. at 762.

181. Harper & Row v. Nation Enters., 471 U.S. 539; Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984); see also Cohen, supra note 68, at 763 & nn. 149-52.

182. Remember, this test needs to apply equally because of the inability to tell when an infringing image is result of image processing.

183. Seymour, supra note 25, at 77.

184. See Shapiro, supra note 53, at 27.

185. See Streano, supra note 6, at 10. Digital scanning is already in the process of overrunning the typeface industry. Typeface fonts can be scanned, but since typefaces are not given copyright protection, typeface developers have watched horrified as their huge collections of typefaces, which were their advantage in business, have been speedily scanned by computer users. Bower, Users in Control of Digitized Fonts, MACWEEK, Feb. 14, 1989, at 58.

186. See supra text accompanying notes 116-140.

187. Cohen, supra note 68, at 761.

188. See supra text accompanying notes 20-22.

189. Note, Digital Sound Sampling, Copyright and Publicity: Protecting Against the Electronic Appropriation of Sounds, 87 COLUM. L. REV. 1723, 1725 (1987).

190. Fleischmann, The Impact of Digital Technology on Copyright La , 23 NEW ENG. L. REV. 45, 55-56 (1988).

191. Id. at 46.

192. Id. at 56. Compact disc sales (digital recordings) have recently surpassed sales of analog phonograph records. Id. at 46.

193. Id. at 46.

194. Kawamura, Digital Audio Tape Technology: A Formidable Challenge to the American Copyright System, 4 AMER. U. J. INT'L. L. & POL'Y. 409, 411 & n.12 (1989).

195. Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987).

196. Comment, Digital Sampling: Old-Fashioned Piracy Dressed Up in Sleek New Technology, 8 LOY. ENT. L.J. 297, 323 (1988).

197. United States v. Taxe, 380 F. Supp. 1010, 1017 (C.D. Cal. 1974), aff'd in relevant part 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977).

198. Kozinn, A Concert in Honor of ASCAP, N.Y. Times, Oct. 29, 1989, s 1, pt. 2, at 66, col. 1.

199. Wheelock, Dance and Exercise Studios Paying the Piper, L.A. Times, Sept. 17, 1989, Calendar, at 56.

200. Schroeder, Music Licensing Firm Pressing Copyright Law, ST. LOUIS BUS. J., Oct. 17, 1988, at 21A.

201. Id.

202. Id.

203. Shapiro, supra note 53, at 20; see also Rosenthal, supra note 59.

204. See Rosenthal, supra note 59.