The Layered Look: Copyrights and Visual Arts

People are generally aware that a painting, photograph, sculpture or other works of art are subject to copyright protection but many are less aware that copyright has many layers of possible protection which can present legal traps for the unwary.

An original work of art which may be a painting, photograph or sculpture, is subject to copyright from the time of creation of the work.  The copyright is owned by the artist or creator unless the work was produced as a work for hire where the creator is an employee acting within the scope of his or her employment duties, or by written agreement between the creator and a party who commissioned or ordered the work.

The exclusive rights of copyright for a visual work include:

• The right to make copies;
• The right to make derivatives;
• The right to distribute copies;
• The right to publicly display the work; and
• The right to reproduce the work on any article or item.

Here are a few examples to ponder in relation to these rights.

A photograph may itself be a separately copyrightable work apart from an original work being photographed.  For example, an old master painting may not itself be the subject of a copyright by reason of its age but a photograph of that master painting can be a copyrightable work of the photographer, or other owner if a work for hire.  The copyright owner of the photograph is entitled to control its copying and public display.

What if you wish to photograph a painting that is copyrighted?  Without permission of the copyright holder such a photograph will be a violation of copyright.

The risks of infringing a copyrighted work are heightened by today's ease of electronic transmission by use of the Internet, social media, cell phones, etc. What if you photograph a copyrighted painting or sculpture and post it on your Facebook page?  That posting can be considered copying and also considered a public display, both of which are violations of the owner's copyright, if done without permission.

Another right of copyright is the right to publicly display a copyrighted work or copies of that work.  Say you purchased an Ansel Adams photograph of a Yosemite landscape, you may display that photograph for your own enjoyment or within you usual social circle but you have no right to publicly display that photograph unless you were granted that right of public display by the copyright owner.

What if you take a copyrighted photograph and Photoshop it into an altered image?  As one of the rights of copyright is to make derivative works, your Photoshopped image would be a non-authorized derivative and also an unauthorized copy of the original work.

Can you put a commercial photo of your favorite band on a tee shirt?  You cannot (absent permission) since the copyright owner has the right to reproduce the photo on any item.

Liability for copyright infringement can be significant.  An owner of a registered copyright can claim damages based on actual provable economic loss or more often statutory damages which can be in the range of $750.00 to $30,000 for each infringement, as a Court may determine.  In cases of willful infringement, a Court can award costs and attorney's fees.  A court may also issue an injunction against ongoing infringement.

In a case of willful infringement under certain circumstances generally relating to commercial piracy of copyrighted works, there can be criminal liability for copyright infringement with penalties including fines and/or imprisonment.  
A defense to an assertion of copyright infringement is the right of fair use of the copyrighted work, which generally allows non-commercial use or copying for purposes of criticism, comment, news, teaching, scholarship and the like.

It would be safe to assume that copyright attaches to most paintings, photographs, sculptures and other visual arts and you should seek permission for any intended commercial activity. Permission may be sought directly from the copyright owner or most conveniently from various licensing organizations which exist for the purpose of providing such permissions.  Usually the permission is for a fee in an amount which depends upon the extent of intended use of the work. Well known licensing organizations for the visual arts include Corbis, Getty Images, Artists Rights Society (ARS), and stock photo companies, among others.

Patent and Copyright Protection for Software API

Recently the United States Court of Appeals for the Federal Circuit had a chance to weigh in on the IP protections afforded software. When deciding Oracle v. Google (Oracle America, Inc. v. Google Inc.), the Court concluded that Google violated Oracle’s copyright in the Java API. The court reasoned that the “declaring code and the structure, sequence, and organization of the 37 Java API packages” were entitled to copyright protection. Some viewed this as a reversal of the perception that API’s were not copyrightable.

API’s (or application program interfaces) are critical elements in modern software that allows programs to interact. The API describes how one program can call to another. This is often seen as a functional requirement for compatibility. By enabling one program to use features from another program, programmers can avoid recreating large amounts of code. Using similar APIs allows programs to be more easily ported from one system to another. Additionally, APIs can encourage development by third party programmers by making interoperability easier which can lead to a richer software environment that is more appealing to customers.

While the Court’s decision revolved mostly around copyright issues, the court acknowledged the potential relationship with patent laws and indicated that computer software may be covered by both copyright and patent laws.

Copyright protection has the potential to be extremely problematic. However, patent protections are equally problematic. In truth, both forms of protection have inherent balancing factors. Patents require going through the U.S. Patent and Trademark Office application process which ensures patents meet certain requirements, such as novelty, subject matter, non-obviousness, etc. This makes seeking patent protection a large investment in both time and money. In contrast, copyright protection may be seen as considerably easier to get as there is no substantive examination process. Additionally, a copyright’s duration is considerably longer than a patent’s.

However, these differences are offset by the associated scope of protection afforded by copyrights and patents. Where copyrights are limited to a specific expression, patents may have a broader coverage for the underlying structure and functionality of the software. This can make working around a patent claim considerably more difficult than avoiding a copyrighted expression.

Software programs are currently deemed eligible for protection from both copyright and patent laws. To some, this may seem counter-intuitive since software is often considered functional since it has instructions for a process. Copyrights do not protect procedures; whereas, patents do (although neither extends protections to cover abstract ideas). However, this reasoning overlooks the fact that software programs can be viewed as having distinct aspects: namely an expressive aspect and a functional aspect.

Even when a program is written in order to provide a particular result, there can still be a variation (or expression) in the way the program is written. For example, there are a number of programing contests where programmers attempt to make the least understandable program. These obfuscated code contest entries produce functioning programs despite being nearly indecipherable as written.

Generally, programmers are encouraged to follow best practices so that anyone who later works with the program can easily understand the nature of the code. This still leaves room for personal style and expression. Returning to the API, the declaration is typically defined as a short command line call for each function. In practice there is limited room for personal expression. A function to return the larger of two integers would be expected to be written as “max (int a, int b)” or as “maximum (int a, int b).” Though the options are varied, using a declaration of add (int a, int b) for such a function would be highly unusual.

One allegation against Google is that the copying of the API is an attempt to gain the benefit of the existing Java environment in order to leech off of the work originally done to establish the Java platform. While this particular fact pattern has the potential to create problems for people hoping to maintain legacy software environments, there appears to be little risk to developers working with an existing platform. This case does not involve the use of the API in programs intended to operate with the Java platform but rather the attempt to create a replacement of the Java platform. Furthermore, the Federal Circuit emphasized the significance of the copying of the structure and organization of the API packages – not simply the use of the API.

Ultimately, this issue is now in the hands of the U.S. Supreme Court who have been asked to take up the case. Some are concerned that given the Supreme Court’s track record against software protection, the Supreme Court may make a ruling which proves problematic for software protection. It is still unlikely they will totally do away with the dual protections of copyright and patents for software, if they take up the case.