Copyrighting an idea? Is this possible?

lewis-richards · Aug 10, 2010

Hi I have a photographic idea that I want to do and I was wondering if you can copyright an idea? I don't think its ever been done before and I also don't think that anyone would think of doing it. However I have ben looking up about copyright information and I can understand so far that the description of the idea can be copyrighted? does this also include the idea? Hope someone can help me?

spolly74 · Aug 10, 2010

Not sure about the UK, but in the US you would patent the idea or process, and/or copyright the finished product.

degruyl · Aug 10, 2010

exactly. Now, patenting an art concept would probably not fly... the process, on the other hand, is entirely patentable.

Worker 11811 · Aug 10, 2010

You can't copyright an idea. Only the FORM that an idea takes.

However, that doesn't mean you can't get it registered as a trademark.

Just try selling film in a yellow box. I double dare you!

lewis-richards · Aug 10, 2010

Ah right this helps me understand it a bit now, the process of the photographs and the ifnal outcome.

Kodak wouldn't be too have if I sell film in yellow boxes, I'll pass on the double dare sorry.

holmburgers · Aug 10, 2010

Just go ahead and tell us your idea, and then we'll tell you if it's copyrightable or not....

fotch · Aug 10, 2010

holmburgers said:
Just go ahead and tell us your idea, and then we'll tell you if it's copyrightable or not....

Ha

Steve Smith · Aug 10, 2010

Nothing is copyrightable (if that's a word). It either has copyright automatically at the time it is created or it does not depending on what it is.

An whilst Kodak may not want you to sell film in yellow boxes, they can't actually do anything to stop you unless you are trying to pass it off as Kodak film.

Steve.

lewis-richards · Aug 10, 2010

Haha im keeping my idea to myself sorry. And thanks steve I guess what you mean is you could do the same idea as me and I cant stop you however if you called it the same series and had photographs from the same angle, same camera, same depth etc it would be copying as such? Except by the sounds of it you would be aloud to do that anyway.

maderik · Aug 10, 2010

INAL, but here is how I think it works. Let say your idea is "famous actress lying nude on a plain background with a boa constrictor covering the R-rated bits." You make this photograph and copyright it. Does that mean no one else can photograph a woman and a snake posed like this? Of course not. How about even the same famous actress and the same snake but another studio and time? Still not protected. What if famous actress' boyfriend took a shot on his phone cam during your studio session merely 1/100th of a second after your shot? Nope, your copyright still does not apply (other contractual obligations might.) How about if they carefully studied your shot and duplicated the angle, pose, and lighting almost perfectly and with famous actress? Now we are finally hitting an area where you might prevail depending the details (e.g., any significant deviation from your version) although this may be less on "copyright" (which means copying your literal image from it's fixed media) and more on "moral rights" that some countries recognize, particularly if this work is strongly associated with your reputation. Because photographs typically consist of arrangements of physical objects in time/space and are thus unique to that time/space, similar arrangements different in time are considered non-copies. You might end up with a stronger case if there is some significant "hand work" (like dodging/burning) that could be considered your brush strokes. Of course when it comes down to it, copyright will be what a series of judges and juries says it is.

Steve Smith · Aug 10, 2010

lewis-richards said:
And thanks steve I guess what you mean is you could do the same idea as me and I cant stop you however if you called it the same series and had photographs from the same angle, same camera, same depth etc it would be copying as such? Except by the sounds of it you would be aloud to do that anyway.

We could each take a picture of the same subject using the same camera, lens, film, etc. from the same position within seconds of each other and we we would both own the copyright of our own images. It doesn't matter who had the idea first.

Steve.

2F/2F · Aug 10, 2010

You need something physical not only for a copyright to legally exist, but for owning the copy rights to something to make any sense. Someone cannot "copy" an idea; only an object. Ideas can be "stolen," but not literally "copied," i.e. reproduced exactly.

FWIW, you can't patent an idea either. The closest you can get is patenting a very innovative "business method" (http://money.cnn.com/2008/02/12/smbusiness/patent_website.fsb/index.htm).

The very first paragraph from the article linked:

"'The short answer to the question is you can't patent an idea,' said Jennifer Rankin Byrne, spokeswoman for the U.S. Patent and Trademark Office."

DLawson · Aug 10, 2010

Steve Smith said:
An whilst Kodak may not want you to sell film in yellow boxes, they can't actually do anything to stop you unless you are trying to pass it off as Kodak film.

Trying to pass it off as Kodak film would be a matter of fraud.

Creating a reasonable source of confusion for the consumer is basis for trademark infringement. Fraud is not required.

lewis-richards · Aug 10, 2010

So basically the answer is a no but only the image I produce is copyrighted as to not be reproduced in magaizes etc without my permission.

DLawson · Aug 10, 2010

lewis-richards said:
So basically the answer is a no

Basically, the answer is that intellectual property law is probably one of the least useful areas to try to get a quick answer about from non-experts. I've been hanging out online for over a decade with people who are experts in this and the only advice that qualifies me to give is, "talk to a lawyer."

Even the most basic IP concepts are hugely misunderstood by the general public.

Q.G. · Aug 10, 2010

Steve Smith said:
We could each take a picture of the same subject using the same camera, lens, film, etc. from the same position within seconds of each other and we we would both own the copyright of our own images. It doesn't matter who had the idea first.

Unless you enter the image into a competition.
I remember long ago a comptetiton winner being disqualified afterwards, because he faithfully copied an image published in a Nikon publicity brochure.
In other words: when creativity counts, it does matter.

And that's also what's relevant to the protected idea thing: to begin to get close to having somrthing protectable, it has to be obviously original.
Hard, that. Harder than you'd think.

On the other hand, the U.S. Patent Office issued a patent for the concept of life. Go figure...

Poisson Du Jour · Aug 10, 2010

Copyright can be quite a handful — especially when something like theft of your work comes to attention, and ensuring you have a good working knowledge of it is essential in arts practice.

One area that is often mired in doubt, but which has solid foundations in fact, is what happens when you are commissioned to do a work for a client, which often stems from an idea. As stated above, ideas do not come under copyright. But resulting works do. Commissioning holds that it is the client who owns the copyright, not you. However, you will have Moral Rights to the work e.g. being correctly named/credited or identified as the person who created the work (applied as Moral Attribution). Many artists run into strife entering exhibitions, festivals and displays that insist on part of their "Terms and Conditions" on ownership of Copyright. That cannot be done without a formal Reassignment of Copyright — handing over your work to another person (usually for an obscene amount of money, the more the better), which in effect means he/she can call the work you created his/her own. Intellectual fraud is probably a better way of putting it, though a lot of money can be made.

In Australia Arts-Law degree courses deal with copyright in some depth (foundation law, contract, moral, intellectual, performance, visual, literary etc., of which have some very important tenets of note. The internet — a bastion of relatively existential lawlessness, has stretched the boundaries of who owns what (and how to prove it), and how, when and where it should be displayed and this is an area that keeps many lawyers in Arts practice very busy. Simply, if you don't want your work stolen, don't put it up on the internet.

alexmacphee · Aug 10, 2010

lewis-richards said:
Hi I have a photographic idea that I want to do and I was wondering if you can copyright an idea?

Only you can know if you're at the stage where you need to take formal advice, but in brief, you cannot copyright an idea, nor can you patent it. You only copyright an expression, not an idea, and you patent an invention, not an idea for one. To patent an invention, you really need to be able to describe it in such detail that someone reading the patent could make it.

I also suspect that whatever it is you figure you have that's novel, you're going to have to research existing patents to make sure that what you think is novel hasn't already been patented or awaiting approval.

paul ewins · Aug 10, 2010

Actually, there are instance where copyright prevents people from replicating the pose etc. however it really only relates to famous photos and only where the photo is used for commercial purposes. The one I am most familiar with is Lewis Morley's photo of Christine Keeler on the bentwood chair which is a genuine 60s icon. Any commercial use of a similar photo for anything vaguely relating to the sixties or sex or politicians would run the risk of a court battle that you would almost certainly lose because in that situation your photo would be a copy of the original. If you want to use a famous photo in an advertisement you can't just shoot your own version. The important point is that the advertiser's only reason for wanting that idea/pose is because of the original photo. There is nothing to stop you making your own version for non-commercial purposes (including sale in galleries) because in those situations you are not pretending that it is someone else's work.

How far does the protection extend? When the Simpsons collection "Sex, Lies and the Simpsons" was released with a picture of Homer in his underwear on a bentwood chair Matt Groening got a license for the cover just to be sure. While it was a cartoon and not a photo it still referenced the original to help sell the product so there was reason to be careful. Parody and homage are fine in most circumstances but commercial use is not one of them.

Very few photographers will have an iconic image that will have this sort of protection. In most cases it is far more likely that we will have an original image stolen and used than someone sees one of our images, likes the idea and reshoots it.

MattKing · Aug 10, 2010

I always find it handy, when I'm thinking about copyright, to think about who might have the right to copy something.

Generally, when you first create some thing yourself, you acquire a bunch of different rights in respect of that thing. In addition to owning the thing itself, you acquire the right to copy that thing as much as you like. That right to make copies of your work is a legal (and commercial) right which we call a "copyright". You can take legal steps to protect your copyright, including stopping others from copying what you created, and suing others who do copy your creation for monetary damages.

You can also transfer your copyright to others - and can get paid for the transfer.

People refer to someone "copyrighting" something. This is an unfortunate term, because copyright is a thing, not an action. There are processes, however, that can be used to confirm and/or register an exiting copyright. Those processes are probably what people are referring to when the refer to "copyrighting" something.

If you have an interesting and innovative idea, I'd suggest you use it to create something (a photograph?) and then takes steps to ensure that it is clear when and where that thing (photograph) was created by you and that you created same without contributions from anyone else.

fotch · Aug 10, 2010

Of course, there is always the issue, if you get a copyright, can you afford to enforce it. Lets say someone infringes on your copyright. It will cost your several thousand or tens of thousands of dollars to go after them.

If they are in a different country, well, new can of worms. If the revenue from the copyright is large, like something Kodak does, that is one thing, but, if its a low revenue issue, it may cost you way more than it is worth to enforce.

You really need to talk to a lawyer or two (second opinion) to get a feel for this situation.

Worker 11811 · Aug 10, 2010

Where I was going with the yellow box thing was to talk about trade dress. Trade dress is protectable.

The little yellow box with red letters on it is Kodak's trade dress. It is a feature that sets Kodak's products apart from all others such that they are instantly recognizable to the buying public. When you see film in a little yellow box with red letters on it, you instantly recognize it as Kodak film.

Three circles in the shape of a triangle could be Disney's trade dress. The stylized Mickey Mouse logo is something that people instantly recognize.

If your photo has a distinctive feature that tells viewers who the photographer is just by looking, that could be considered trade dress. If you looked at a photo of a woman sitting on a wooden chair and instantly knew it was Lewis Morley behind the camera, it could be his trade dress.

If you published a photo of a nude woman lying on a bed and there was a shape of bunny ears hidden in the lay of the sheets, don't you think Hugh Hefner's lawyers would be calling you?

So, let's say you have your model holding an egg. If that egg becomes an instantly identifiable image that tells the viewer that it is you who took that photo and that any photo in which the model is holding an egg is associated with you and your photography business, I bet that IS a protectable feature as a trade mark or as a trade dress.

6x9 · Aug 11, 2010

Can you please post your idea so we can each start making money from it? I'm getting tired of working for a living...

Steve Smith · Aug 11, 2010

Q.G. said:
Unless you enter the image into a competition.

But that's nothing to do with the law.

Steve.

Q.G. · Aug 11, 2010

Steve Smith said:
But that's nothing to do with the law.

Steve.

It is that too.
I posted that to illustrate the point that it is creativity that counts. It does matter whether you copy something, or are creating (!) an original work.
As other posts have already mentioned, you can (as your post suggested) copy an original work, but then you are also liable to be sued for copyright infringement. Being thrown out of a competition may be the least of your worries then.

On the other hand, some things are so 'beaten track', so 'overdone' that it would be impossible to present yet another example of it as being an original work.
Again (or rather: still), it's creativity that counts.

Copyrighting an idea? Is this possible?

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