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The Shell Game is on
Copyright, Copyright, who has the copyright
Trudy Levy
Image Integration
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As the Napster furor has shown Copyright may well be the topic of interest in 2001. It is also getting interesting in the field of visual images as each successive court case adds another layer of definition as to what has a copyright. The cases also reveal that it is getting easier to find infringements of ones copyright.
in 1998 the Rock and Roll Hall of Fame in Cleveland, Ohio, successfully defended the uniqueness of its building's image, designed by IM Pei, against a photographer's use of it in a poster which he was selling. As the poster also bore the name of the Rock and Roll Hall of Fame, they argued that he created "confusion" as to ownership and utilized the building's unique appearance for profit. The infringement was not difficult to find as he was marketing it as a poster of the Hall of Fame, but the assignment of the copyright to the building's owner is interesting. Note, IM Pei the creator of the original object, did not participate in the suit. So we have a creator, the photographer, whose creation, the poster, infringed on the R&R Hall of Fame's copyright of their building's image which IM Pei, the creator, as their architect sold to them.
Does this mean that an owner of a creation owns a copyright of the image of that creation which can be protected if that creation contributes something unique to the owner? Does that then contribute to a museum's argument for a copyright to images of objects within their collection, whether or not the art has become public domain, as its collection uniquely defines the museum. Also does this apply to images of famous buildings or structures? Imagine if the Golden Gate Bridge District were to claim copyright on the Bridge's image.
When Robert Raushenberg was found to infringe on photographer Pete Turner's copyright because he used without permission a magazine page in one of his assemblages which contained a commercial photograph which Mr.Turner had shot, was he also infringing on the magazine or the group placing the advertisement which had hired Mr. Turner to uniquely represent their product?
One might argue that Public images are there to be viewed by the public and so therefore use of that image could not be restricted, but in the case involving the film, Batman Forever it was found that unless an artist has transferred his rights, he maintains the copyright to his work. Thus Warner Brothers had no rights to use significantly a piece of public art just because it was situated where they had been given permission to shoot.
Now we have a case against Corbis Corp for selling the image of publiclly accessible art, Murals. The United Farm Workers and Susan Cervantes, a San Francisco muralist, are suing Corbis Corp for infringing their copyrights. Corbis is selling digital images of photographs of murals which Ms. Cervantes had created and which incorporated members and trademarks of the UFW with their permission. Corbis which acquired the photographs of these murals, properly credits on their site, the photographer who created the photograph with the copyright for the photographs. They make no mention of Ms. Cervantes, who created the mural; Delores Huerta, whose image appears on the mural, or the UFW, the subject of the mural whose logo also appears there, nor have they sought permission from these parties or offered remuneration.
It would seem then that Ms. Cervantes has copyrights to her mural as does the UFW to its trademark. Does the sale of the photographs infringe her copyright? As Corbis still has other ³Murals² up on their site, I would assume these photographs were also being marketed as photographs of her murals. This would seem a significant use. Since an artist beat Warner Brothers, they may win this one.
The new twist is here that Corbis is neither a creator nor an owner but a distributor. Who is the responsible party here, the photographer or the stock photo house? Who has or is infringing on whose copyright? And who would have known about it, if Corbis's images were not easily available online. A quick search at ditto.com did not turn up anymore murals by Ms. Cervantes, but I did find a photo entitled "From Whence We Came" which is of a mural for which only the photographer is credited. That photo is at the other stock photo house - Getty Images. Speaking of distributers of images, when you share your images with your far flung family on the Net, do you know who has the copyright for those images?
Only the future, Congress and the courts can tell. Be advised to stay informed and aware that if you "borrow" or "incorporate" or use someonelse's creation, you are probably infringing on someone's copyright and they might more easily discover it.
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