Usually the courts give a lot of leeway to derivative works which do a
lot of transformation, especially when pitted up against claims from
works which don't do a lot of transformation.
In this case, the photograph is obviously sufficiently original to
have a copyright claim. However it is not *so* original to have a
copyright claim no matter what happens (i.e., it has none of the
distinctive style of indisputably artistic photographers). It is a
sports photograph by a sports photographer (or, at least it appears to
be one, which is probably fine for our purposes). There's nothing
wrong with that, but it does not exhibit the creativity of, say, a
Leibowitz or a Cartier-Bresson or even something which would appear in
National Geographic.
Now all of this, like a lot of copyright law, is fundamentally
unknowable without a court test of it, but my personal feeling on it
is that this drawing would pass any "fair use" bar in the United
States, because it is highly transformative and very creative (it is
not a simple tracing, for example). The derivative work uses only the
most schematic elements of the original (composition, but not
lighting, coloring, development, etc. etc. etc.) and then applies
totally unique judgments about line weight, color, style, what to
bring out of the background, etc.
The full copyright status would, in my opinion, be a very strong "fair
use" claim regarding the original photograph, and a strong copyright
claim to the transformative work, which could then be licensed CC-SA
etc. after that.
FF
On 6/12/06, Ilmari Karonen <nospam(a)vyznev.net> wrote:
Ruud Koot wrote:
Ilmari Karonen wrote:
Ruud Koot wrote:
I doubt the drawing preserves any features of the
photograph of which
the photographer could claim to have copyright on.
It does seem to preserve composition.
Yes, but photographer did not arrange it. If it wasn't indicated I
couldn't have told you (with absolute certainty) that the drawing was
based on the photograph, or because the author had seen that game.
That's an interesting argument. Not having ever watched cricket, I
can't tell if the viewpoint chosen by the photographer if one from which
people in the audience might plausibly also see the game.
Of course, in any case, the photographer presumably did pick his vantage
point deliberately, and chose to record and publish that particular
moment in time rather than, say, take the photo two seconds later from a
point five meters to the left.
The copyrightability of photographs is a surprisingly complex question,
but also one which most jurisdictions have chosen to answer with a firm
"yes". Nonetheless, it is important to note that the creative content
in a photo consists of only three elements:
1. Where to point the camera?
2. When to click the shutter?
3. What settings to use?
Of course, postprocessing may involve additional creative decisions, but
that is not essential to the image being copyrightable. Thus it
follows, as a logical consequence, that any reproduction of the subject
that preserves a significant fraction of those elements must constitute
a derivative work.
The drawing in question preserves the former two, together known as the
composition. While it effectively masks (some of) the technical choices
used to produce the photograph, the fact that the drawing depicts the
same moment in time from the same vantage point -- even with the same
field of view -- makes it highly unlikely that the drawing could've been
created without basing it on the photograph.
In fact, having thought about it, I must disagree with your claim above.
The drawing does contain enough distinguishing details, including the
pose of the players and the position of the balls, that, if presented
side by side, I would find the odds of the drawing being based on
anything other than that specific photograph vanishingly small.
--
Ilmari Karonen
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