The example you give is case in point. The fact that a landscape photographer could take picture of some river, and another guy with a camera can stand two feet from the first one is the same reason why any photo made by a photographer can be mimicked in another area of art and the copyright wouldn't stand.
The photographer is not a painter, therefore if I were to paint someone else's photograph it would not infringe on their copyright, even if I sat there and painted it in front of the original photographer.
No, on the contrary, I think you just made my point.
The reason that another photographer can take a picture of the same landscape is that 1) the landscape itself is not copyright, and 2) the second photographer would have to make the effort to create an
original composition -- i.e. hike up the hillside, frame the shot, wait for the right light, get the right exposure, film, and all. This makes it an original composition, NOT a derivative work.
If you went up the hillside and painted the landscape from nature, it would be an original work.
If you paint, or photograph, or reproduce in corn husk weavings, the image as it was conceived, composed and originally executed by the photographer, then yours IS a derivative and is subject to copyright.
If i snap a picture of another picture, by all measures of copyright law I own that image.
Um, no, that's about completely backwards. It's like saying if I make a copy of a CD I now own the rights to that song.
Just because you reproduce an image of something does not confer copyright of the original image to you. You don't have copyright on your snapshot because it is a derivative work.
Again: You could not sell prints and posters of a painting just because you took a photo of it in a gallery, or even if it were on display in public. The artist retains both copyright and moral rights to the portion of the image in your camera that was their original work.
One interesting case was a museum which took photos of historical images it housed but that were in the public domain (that is, the copyright period had expired). The court said that simply accurately reproducing something did not confer a new copyright to the museum. Those images remained in the public domain (as they would have remained the copyright of the original artist if they were still within copyright).
Digital Skunk said:
If the photo Nick Vedros (
http://www.vedros.com/) took of the dog with the post-its was redone with a dog dotted with "support our troops" ribbons there would be no copyright infringement. That suck for Nick who might have been the original creator, but he can only copyright his photo and his photo alone. If I were to paint the exact image on canvas, then Nick couldn't sue, I put too much "creative effort" into making my painting.
If you painted exactly the same dog and post-its, you'd lose. Although it was a lot of work, it was not creative or original.
If you painted or photographed a similar dog with things attached, then that's arguable. There have been a number of cases where the same 'idea' has been used with different details and entirely new production, and have been successfully sued by the original artist. If the idea is recognizably the same, the artist has a case they can argue that the work infringed on them, even though not a bit of the original was reproduced. Nash the Slash is a performance artist and musician who only appears in public with his head wrapped in bandages like a mummy, wearing sunglasses and in formal wear. Pepsi used actors wrapped like mummies and wearing formal wear and sunglasses in a commercial, and settled the copyright infringement lawsuit out of court with Nash.
Again, if I make and sell Mickey Mouse dolls with red suspenders instead of black, or with a elephant nose, Disney still will sue me.
