Tuesday, March 2, 2010

Copyrights: When Does Flattery Become Infringement?

A recent article about an art world dispute raises an interesting problem that has perplexed lawyers, judges, artists, and photographers for years: how much legal protection is to be given to a photograph? The dispute the article describes pushes the boundaries of what has been and continues to be one of the most challenging and controversial issues in copyright law: when does someone go beyond permissible "copying" of an unprotectible idea and cross over into illegal copying of the "expression" of that idea? Lawyers, law students and judges have grappled with this "idea-expression dichotomy" for decades - perhaps longer. The shorthand way I have often tried to explain the idea-expression dichotomy is this: if Shakespeare had been alive at the time the play and subsequent film "West Side Story" were produced, he wouldn't have had a legal claim to stand on. Why? Because although "West Side Story" copied the idea of "Romeo and Juliet", the expressed of that idea in "West Side Story" was new and different.

In this recent case, photographer David Burdeny is accused of duplicating the look and feel of several photographs by Sze Tsung Leong and copying mulitple text descriptions of the photos. [Note: to the best of our knowledge, no law suit has been filed yet; the case currently resides in the "exchange of angry letters" mode].

In terms of photography, typically no one photographer can claim the exclusive right to the idea of taking a documentary style photo of a building or landscape, for example, the Ponto Vecchio in Florence or a pyramid in Eqypt. [To the contrary, of course, if Leong had combined a photo of the pyramid with a waterscape photo such that the pyramid appeared in the water, Burdeny would have a dead-bang loser case if he copied that expression]. Thus if Burdeny was alleged to have "copied" only one of Leong's photographs, I believe Burdeny would have a much cleaner defense. But when you take into account the combination of the number of photographs Burdeny is alleged to have copied plus the written descriptions of the photos, the case for Leong and against Burdeny gets more compelling - at the very least to the extent that a jury might be swayed to believe that Burdeny crossed the line. Frankly, the argument for infringement by Burdeny is much stronger with respect to the descriptions of the photos. Burdeny's descriptions may not be "identical" to Leong's, but they are "substantially similar" - and that's the standard for copyright infringement under U.S. law.

More to follow as the case develops.......

Questions? info@branfman.com or www.branfman.com

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