Originally published on March 30, 2018 in Rangefinder Magazine.
Let’s say you are a photographer. A client hires you to take some engagement photos, and one of them turns out really well: you set up the clients’ living room to look like a tropical beach, with sand and palm trees, complete with a setting sun right behind the couch. Your client loves it, you love it, and you use it as advertising on your own webpage. A few months later, your client calls you, and directs you to an online retail store. The online store has splashed all over its main page what looks like a near-perfect replica of your photo - there are different models instead of your clients and the couch is a different color, but all the other elements are there: the sunset, the couch, the palm trees, the sand, everything is the same and in the same place in the photo. It is clear that the retail store saw your photo on your website and decided to recreate it.
This is a problem! You spent time and money on that set-up, and your clients were really excited about having such a unique, creative photograph. Now near-perfect replicas of their engagement photos are on billboards and the sides of buses, and all your clients’ friends think they copied the retail store. How gauche! Everyone is mortified. But do you have a cognizable, legal claim, for copyright infringement?
You might, but there’s an important concept to understand in order to know whether you could sue the retail store: the idea/expression dichotomy.
The basics of this concept are simple, if a little abstract: you can never own an idea, but you can own the expression of that idea. Let’s tease this out a little bit. Under § 101 of the U.S. Copyright Act, in order for any work to be copyrightable, it must be fixed in a tangible medium. To be “fixed” simply means that it cannot change, and a “tangible” medium is just any physical manifestation of that unchangeable, fixed work - a glossy print of a photograph, a film negative, or a RAW file are all tangible mediums (despite the fact that a RAW file exists only as a pattern of electrons, it is still a tangible medium). Basically, to be “fixed in a tangible medium” means that it can be simultaneously and accurately perceived by multiple other human beings. If you need a little illustration for this concept, consider that in the United States food is not copyrightable. A donut cannot be simultaneously and accurately perceived by multiple people, because in order to “perceive” a donut, you have to destroy it (by eating it). Two people can simultaneously perceive two donuts from the same recipe, but those two donuts are two different expressions of the same idea.
And you know what else can’t be simultaneously and accurately perceived by multiple other human beings? The ideas in your head. You may have the idea of making a living room into a beach, but until you actually fix that idea into a tangible medium - such as a photograph, a painting, or even a detailed description - your mere idea is not enough to give you a copyright. What’s more, once you actually do fix that idea into a tangible medium, your copyright only covers your expression of that idea. If you set up and photograph a living room beach, and then months later someone sets up a different living room beach, with a different living room, different models, different couches, different plants and animals, your copyright has not necessarily been infringed. Just because you own the copyright of one expression of an idea, does not mean you own every expression of that idea. J.R.R. Tolkein, for example, wrote extensively about wizards and giant spiders, but J.K. Rowling doesn’t infringe his copyright by writing extensively about different wizards and different giant spiders. She expressed those ideas differently.
Now here we come full circle. In our hypothetical, the retail store didn’t express your ideas differently: they recreated your photograph nearly perfectly. There may be different models and a different colored couch, but these are incidental. Your expression of the living room beach idea - the way you composed the shot, the colors and set items you chose, any other creative urge you put into that image - has been nearly entirely reproduced. In this case, the retail store probably has infringed your copyright, because they have taken your expression of your creative urge and reproduced it for their own gain. But how do we know for sure?
It depends somewhat on where in the United States you are (as different federal circuits have slightly different interpretations of how to determine indirect infringement), but for the most part the answer lies in your audience. Would any basic person from the street recognize the two photos as being appreciably the same? If yes, then you’re on the right track to a settlement from the retail store. Any real legal determination in court would be much more complicated than this, of course, and include plenty of expert witnesses to point out differences and similarities between the two photos, but whether or not a layperson can clearly see the similarities is a strong indication of infringement.
Be warned, however - even if there is a clear indication that the retail store has infringed your photo, there is still the hurdle of “fair use.” Fair use is a complex concept, but in essence it is a legal doctrine that allows us to use or recreate someone else’s copyrighted images, if we have “transformed” them in some way (and if we’re not messing with the owner’s ability to make money off the original image). The retail store might argue that it had transformed your original photograph somehow, and it would be up to you to prove both that it had not significantly transformed your image - which would not be too difficult. In order to “transform” a copyrighted image, you must transform not just the incidental details of the expression, but you must also transform some aspect of the underlying idea. The retail store has not changed any real aspect of your living room beach set-up. Although the models and the couch may be different, both the expression of your original photo is the same - same set-up, same colors, same composition - and the idea of your original photo is the same - it’s still a beach in a living room. And it would be reasonably simple to prove that retail store’s infringement of your photograph harms your business: it makes you look like you stole from the retail store, not the other way around, which, aside from being super embarrassing, is probably pretty bad for your business.
Copyright law is complex, and while the concept of the idea/expression dichotomy is relatively simple, in practice it can be extremely fiddly. If you are concerned that someone has reproduced your copyrighted work in a way that you think may be infringing, talk to an attorney. Let us help you bring in all the facts you need to determine where your legal rights lie and how to pursue them.