On 05/07/05, Haukur Þorgeirsson haukurth@hi.is wrote:

Thank you, Andrew. That seems very clear (not to mention evil). I've just got one remaining question. At the time the picture in question became featured it was argued that while the original photo (with the ruler and all) was copyrighted a derived work using only the manuscript part of the image would not be (presumably because of Bridgeman v. Corel).

So my question is: Would this cropping help at all under British law?

My understanding is that this is a misunderstanding, if that makes any sense.

Editing a photograph creates a new copyrighted work, this much is true - there is originality and skill involved. However, this copyrighted work may itself _still be an infringing work_; the new copyright doesn't magically cancel that out.

"...the fact that the defendant has himself added enough by way of skill, labour & judgement to secure copyright for his effort does not, under the present law, settle the question whether he has infringed. Rather the issue is whether a substantial part of the plaintiff's work survives in the defendant's so as to appear to be a copy of it. It is not relevant to ask whether it is a substantial part of the defendant's work." (Cornish & Llewelyn, 'Intellectual Property', 5th edn; 11-09)

If the newly copyrighted work is itself infringing, then even though we're licensed to use the new one, we're still infringing on the original copyright by republishing it.

I can see where the argument is coming from, but I would be very loathe to use it in court - as we've seen, the photograph is copyrighted both by virtue of the "skill" in taking it and in the choice of composition. Merely removing the context of the composition from play, in this photograph, is not enough to anull the copyright, even if we assume that it such anulling could legally be done.

(There are also - possibly - the issues of moral rights to consider, as you're editing the context in which the photograph was made; this might be held to be derogatory treatment of the original, though this is a sidenote and I wouldn't place much strength in it.)

I sympathise with Alphax's stance ("spurious, to say the least"), but British copyright law is rather insistent in dealing with photography, for various historical reasons. Yes, you could argue in court that this is a non-infringing photo, and I'd wish you well... but I wouldn't want to bet any money on the success of your defence.