Some years ago significant controversy arose in Australia when it was found that the winner of a leading art competition had painted the winning portrait from a photograph. Setting aside issues of ethics and otherwise, this (and similar examples) raise interesting copyright issues whereby the painting could well breach copyright in the photo, in the absence of a licence from the photographer.
It has long been established that copyright laws protect the expression of an idea, but not the idea itself. For example, the use of dramatic landscapes, specific animals, iconic landmarks or similar could never be reserved to one photographer only. However, one photographer can prevent others from copying their images, or as the case may be, copying of the juxtaposition of specific items within images. Therefore, any other photographer can use similar subject matter in their work, provided that the end result is not a copy of the first photographer's work.
The Application of Copyright Laws
The Copyright Act 1994 defines “copying” broadly, as including:
> Reproducing or recording work in any material form;
> The making of a copy in 3 dimensions of a two-dimensional work and the making of a copy in 2 dimensions of a three-dimensional work;
> The making of a photograph of the whole or any substantial part of any image forming part of the film, broadcast, or cable programme.
Furthermore, the Act provides guidelines as to what constitutes an infringement of copyright. Copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does “any restricted act”. A “restricted act” relates to either directly or indirectly to the copying of work, as a whole or any substantial part of it.
The basic elements constituting infringement of copyright, by copying works are:
> a sufficient degree of objective similarity between the two works; and
> some causal connection between the work infringed and the infringer's work (so that one could say that the latter was derived -consciously or subconsciously- from the work of the original author).
These factors need to be considered in conjunction with the Copyright Act 1994 and fairly balanced, based on the need to protect the rights of the original artist against allowing creative development.
The extent of "copying" required to constitute infringement has been discussed in several leading Court decisions. The main established principle is that it is the quality of what is adopted from the original work, not the quantity that dictates whether work has been copied. This will be a question of fact and degree examined in each case. In theory, 8 bars from a song, or one page from a book, can constitute infringement if these form a "substantial" part of the work.
The Da Vinci Code Case
The recent judgment of Baignet and Leigh v Random House Group Ltd has provided a recent insight into the application of copyright laws, when faced with an allegation of “copying”. The case was bought against Dan Brown’s publishers for alleged copying from the claimant’s 1982 publication, entitled “The Holy Blood and the Holy Grail”, and the incorporation of aspects of that work in The Da Vinci code.
The claimants alleged Brown had breached copyright of “The Holy Blood and the Holy Grail” by using “central themes” and theories presented in Brown’s depiction of the story of Robert Langdon and Sophie Neuveuxs’ search for the holy grail.
The Court dismissed the claim, ruling The Da Vinci Code was merely an expression of a number of facts and ideas which were not protected by copyright. The Court applied the principles discussed above, and affirmed that ideas and facts alone are not capable of being protected. Rather, it is the way in which they are expressed/ presented which may attract protection under copyright laws. Had the claimants been able to establish that Brown had copied a qualitatively substantial part of the original work, they may have been successful in their action against Random House.
Implications for Photographers
It is common practice in all industries to use concepts, precedents and images as inspiration for producing works. However, if one creative work is “inspired” by another, the following questions arise:
> How much work and creative ability has been expended by each author/ artist?
> Is the second work a reproduction of a substantial part of the first?
> Would an objective party perceive the second work as a copy of the first?
> Can a “causal connection” (i.e. ‘derived inspiration’), whether conscious or subconscious, be established or set aside?
The combination of these and related factors will be determinative of any claim that the second work is an unlawful breach of copyright of the first, and whether the second work is sufficiently original to attract copyright (in whole or in part) in its own right.
James Carnie & Gabrielle Lourens
Clendons
Clendons is an Auckland based law firm, specialising in copyright and intellectual property issues. The firm is a sponsor and representative of various New Zealand visual arts organisations including AIPA, NZIPP and DINZ.
