I’ve Been Ripped Off—Why Isn’t it an Infringement?

I can’t tell you how often I get an e-mail or phone call from a photographer with the same story: A current or potential client contacted the photographer about a possible assignment or use of a stock image. The client described what he was looking for and asked to see some samples of images that might work. The photographer complied and tried to protect himself by sending some low-res and/or watermarked images that would give the client a clear view of the images but that could not, as a practical matter, be used directly for any kind of commercial or publication purposes. Often, the submission was accompanied by a fee estimate.

Then came a period of resounding silence and, perhaps after a follow up by the photographer, a message saying something like, “Thanks, but we’ve decided to go in another direction.” A few months later, the photographer ran across the client’s Web site or ad campaign and, to his horror, he saw images that were exactly along the lines of his idea and looked remarkably like his photographs, but they were by another photographer? What the hell?!

At that point, the photographer decided to contact a lawyer, such as yours truly. Whenever I hear that kind of story, the first thing that I ask is to see copies of or links to the photographer’s original images and the ones that are being used by the entity that was supposed to become his client. I take a look and find that the photographer is absolutely correct: The client’s images do look a lot like the ones the photographer sent him. I then tell the photographer that I do not believe that he would win if he were to sue for copyright infringement.

How could such an apparent contradiction be true? The answer lies in several fundamental aspects of our copyright law. First, the Copyright Act is absolutely clear that there can be no copyright protection for ideas or concepts. §102(b) of the Copyright Act of 1976 specifically says, “In no case does copyright protection for an original work of authorship extend to any idea… (or) concept.., regardless of the form in which it is… illustrated, or embodied in such work.” That is, you can get copyright protection for your original expression of any idea or concept, but you cannot protect the idea or concept itself.

The distinction between the expression of an idea and the idea, itself, has lead to the development of what copyright lawyers refer to as “the idea-expression dichotomy.” What that means, without the lawyerspeak, is that the images have to be broken down and analyzed to see if the similarities between them stem from the concept of the photographs or from the original photographer’s interpretation and expression of that concept. For example, every photograph of a bride in a bridal gown holding her bouquet and standing in a garden is going to bear a lot of similarity to every other photograph of the same subject matter. The Copyright Act says that the first person who thought of posing and framing that shot could not get a legal monopoly in the form of copyright protection that would allow him to sue the untold number of photographers who followed and made photographs of that subject in that pose. Actually, that is a good thing, or else most of the readers of this magazine would have been sued for infringement and out of a job generations ago.

To prove that an image that is similar to yours is an infringement, you have to be able to prove that the similarities are embodied in the “copyrightable elements” of your photograph. The concept that is expressed in the photograph is not copyrightable and, therefore, neither are those aspects of the photograph that are necessary to any and every expression of that idea. This legal “fact” has resulted in a the development of a concept that copyright lawyers refer to as the doctrine of “merger.” That is, some aspects of an image are so integrally tied to the concept as to have merged the expression into the concept. In other words, there is no way that anyone could make a photograph of that concept without including those aspects. As one court put it, those aspects of “the work cannot be protected by copyright protection because protecting the expression in such circumstances would confer a monopoly of the idea upon the copyright owner.”­

So that is how it can happen that someone can rip off your image without infringing your copyright. To go even further, even if you can show that the offending images bear similarities to your unique—and therefore protectable—elements that are not merged into the concept, you would the have to show, not just that those elements are similar, but that they are what the law considers to be “substantially similar.” However, I have run out of space in this column to discuss substantial similarity, so I will have to address that in a future article.

Victor Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP).  He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. Mr. Perlman has frequently appeared as an author in various publications, including Communication Arts and Popular Photography and is co-author of Licensing Photography, published by Allworth Press.  He has testified in Congressional hearings and proceedings held by the U.S. Copyright Office and the U.S. Patent and Trademark Office.