Copyright - Similar or different?
May 19, 2009 7:26 AM   Subscribe

If I put most of my photos in the public domain, how different does one of the photos need to be for me to *not* label it as public domain and retain copyright and try to sell it?

I have a website where I put all of my pictures up as pubic domain images with a Creative Commons license. That site is fine, and I'm happy with how it works. But I'm toying with the idea of trying to make some money from my photos. I think it would be easier/better to do that if the "for profit" photos were copyrighted by me. I doubt anyone will buy or license a photo that anyone can download and use for free.

I have two questions -

1) Let's say I take a series of photos of a sunset. One of the photos is really good and I decide to retain copyright. A few others in the series are not as good, and I decide to make those public domain. How different does the "for profit" photo need to be? Is a photo just taken a minute later (when the sun is lower) count as different? How about post production?

2) How much grief am I likely to get from someone who buys or licenses the photo over something like this? How different would the photos needs to be to avoid pissed off customers?
posted by y6y6y6 to Law & Government (7 answers total)
When you say "public domain with a creative commons license", which CC license did you pick?
If it has a license it's not "public domain"
As the copyright owner you can do pretty much what ever you want with the licensing of your photos.

For example you could pick a CC-Non-commercial license as the default licenses for pictures you post, but also make it clear you will also license the same photo for commercial purposes if so desired.

You could also put photos in the true public domain except for the photos that you wish to keep commercial terms on.

1) To answer your questions, pretty much each action you do creates a new copywritten work, even if they are almost exactly the same.

2) Why would someone buy your photo if a really similar one was in the true public domain?
Many times someone want to have clear ownership or licensing rights, that's something people will pay for.
posted by bottlebrushtree at 7:41 AM on May 19, 2009

Response by poster: "When you say "public domain with a creative commons license", which CC license did you pick?"

Yes, license was the wrong word. I'm using their public domain designation/dedication.
posted by y6y6y6 at 8:05 AM on May 19, 2009

If your PD picture is almost exactly the same as your copyrighted pic then that will make it less salable. You want the quality to be noticeable in the copyrighted photo. Take the very best picture from a series and make that one for sale and then offer the worse ones available for a CC license.
posted by JJ86 at 8:37 AM on May 19, 2009

Best answer: How different does the "for profit" photo need to be?

The pictures need to be this different--> |         |

IANAL, but: If this is an issue at all (and I don't think that it is), it would be evaluated on a case-by-case basis so it would be difficult (read: impossible) to really give you a "guideline". That said, it seems like the issue you're worried about here is derivative works. From 17 U.S.C. ยง 101, emphasis supplied:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
Your second, third, and fourth pictures of the sunset are not based on the first picture, they're based on the sunset which, presumably, nobody has claimed the copyright to. They're not derivative works just because they're pictures of the same thing, or really similar pictures, derivative works actually incorporate the original work in some meaningful way. For example, if you were to take your first sunset photograph and then draw a pterodactyl onto it, the new (prehistoric) sunset could be a derivative work.

Another way to think about this is: do you think the first person to take a picture of a sunset holds the copyright to all other sunset photographs just because the new ones look kinda similar?

As for your second question -- you're just talking economics. The question is whether a particular consumer believes that the free photo is an acceptable substitute for the licensed photo. Some may, some may not. Are they going to be "mad" if they buy one and then find a similar one for free? Maybe. Is that really your problem?
posted by toomuchpete at 8:52 AM on May 19, 2009

Are you asking from a legal standpoint? I'm not a lawyer, but my understanding is that each unique creative expression is separate and you can retain or donate copyright on any or all of them. A difference of a fraction of a second would seem to be all that is required to establish each unique expression.

Or, are you asking from a commercial standpoint such that having a similar image in the public domain makes your commercial image less salable? That is probably true, but it seems unlikely that somebody buying your images through a stock house (I assume that's where you'll be making them available for sale) would bother to search for other similar images are know to go looking for your site. So, I suspect it wouldn't be a major issue. The contract you sign with the stock house may have their own rules about exclusivity or similar shots from a series, and they may take a dim view to similar but different, so check the contract or ask your lawyer to check it.
posted by willnot at 11:44 AM on May 19, 2009

Response by poster: Both really.

The impression I'm getting is -

1) Each photo has it's own copyright when it's taken, similar or not, and can be handled by different copyright or licensing.

2) Probably fine as long as you aren't a dick and abide by any contract.

Is that about it?
posted by y6y6y6 at 12:15 PM on May 19, 2009

Best answer: From a legal standpoint, the copyright issue is well covered above. Two distinct (but incredibly similar-looking) pictures can have radically different licensing terms and you'll be fine.

From a photo buyer's perspective, in the sunset example, there would be absolutely no incentive to purchase the one photo when an almost identical photo is available for free. And while it is true that a photo buyer who finds your picture at a stock agency would unlikely find the free picture on your website, don't underestimate the photo buyer's search process. I've heard of plenty of cases where photographers getting screwed while trying to hedge their bets by putting their photos up for sale at multiple royalty-free stock houses. Photo buyers search multiple avenues when looking for photos and if they find the same photo at a microstock site and a site that pays photographers closer to a decent fee, they'll go with the microstock site every time.

Also, for many types of photographic licenses, it's not uncommon for buyers to negotiate for (and pay more for) an embargo on sales of similars to prevent competitors using similar images for similar uses. If you have similar images available for free, you will be unable to provide the buyer what the guarantee that a competitor won't use the freely available picture, and that will cost you sales.

One other annoying thing with CC, public domain, and other methods of ducking away from current copyright schemes is that once the cat's out of the bag you can't decide to reapply more restrictive copyright terms. Well, you can, but it won't amount to a hill of beans when a buyer comes to license a photo for an advertisement. When a company decides on an image for an ad or a magazine picks a picture to illustrate a story or serve as the cover, they often pay money for the protection that no other ads/magazines/stories will have the same picture. Not always, but often. It is embarrassing when competing companies run the same stock photography in concurrent advertising campaigns. To wit, the Everywhere Girl (Google Images search). If your picture (or similar) was ever available under unrestrictive licensing and could conceivably have been used somewhere (for CC pictures, this just means if it was available online under CC; for royalty free pictures for sale at a stock agency, this applies if the picture was ever sold royalty free) you cannot guarantee the buyer that a competitor will not use the photo at the same time. You can stop offering the photo under unrestrictive terms, but you cannot revoke the rights you gave up to previous users/downloaders/buyers.

Also, if you're looking to make money from your pictures, stay far, far away from microstock. Fifty <>
Also, I think you're overestimating the value of pictures of sunsets...
posted by msbrauer at 5:53 PM on May 19, 2009 [1 favorite]

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