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 a
picture 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 the
choices 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
--
Jay R. Ashworth jra(a)baylink.com
Designer Baylink RFC 2100
Ashworth & Associates The Things I Think '87 e24
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