On Wed, Jan 24, 2007 at 09:17:56AM +0100, Andre Engels wrote:
If, however, I took a picture of you standing next to your framed drawing hanging on your wall, there would most certainly be copyrightable expression in my photograph that was not solely derivative of your copyright in your work.
Watch your use of the word 'solely'. If it is a slavish copy, it's the copyright of the original author. If it is just a minor thing on a larger photograph, it is copyright of the photographer (with the image being fair use or some similar defense). In cases in-between, there might well be a double copyright - when you make that picture in such a way that (say) the picture is half of the photograph, and then someone goes and publishes that photograph, he might well be infringing on BOTH your AND my copyright.
I don't know *precisely* how that line is drawn in copyright cases, but yes, I understand your point. Of course, being derivative is sort of like being pregnant; I'm not sure you can do it "a little bit".
In reality, I still have my copyright in the picture, and your
photograph is a derivative work, which in the absence of a licence for you to create derivative works, I also own the copyright to.
*To the extent that there's no creative input of mine in my photograph*.
No, to the extent that the photograph is a derivative work of the picture.
I believe those to be functionally equivalent, but yes, you're right.
If A owns the copyright in software/etc, and B takes apicture of it, then in the absence of a licence permitting B to use the software/etc to create derivative works, A owns the copyright in the picture. What your rights are when you take a picture is determined by what licence you had to use the original thingy you took a picture of.
I assert that a copyright in the *program code* to Microsoft Word does *not* constitute a copyright in *the millions of different possible visual displays that program could produce* -- especially when you consider that those displays can differ markedly based on the choices of system fonts and color themes chosen by the computer's operator.
Well, there must be a creative act on the side of Microsoft and its programmers.
Oh, certainly. But those are incidental to the primary purpose of the program.
Whether there are such decisions of any importance, or thechoices are all either caused by the nature of being a text editor or otherwise non-creative, is something for the judge to decide - although the more likely outcome, I think, would be that the judge finds "no reasonable case of damage". Actual speaking in favor of Microsoft would probably only have chances if the outlook of Microsoft Word would be copied quite precisely by another text editor program.
Sure. But again, an affirmative ruling in such a case would be tantamount to ruling that indeed, a software manufacturer automaticall got -- without filing for it -- copyright in the appearance(s) of a program automagically when copyrighting the code -- and since the appearance depends on the *OS* much more than the program itself, I don't think *that's* reasonable either.
Certainly, getting a test case to go in a reasonable direction here would require having, oh, say, Larry Lessig try it... :-)
Hey. I'll ask *him*. He ought to be equipped to have an opinion... (and, along eith Eben Moglen, inclined to give it).
Cheers, -- jra