...he would have a thing or two to say about the discussion over at Tech Dirt about a judge dismissing a copyright lawsuit as bogus. In the lawsuit, one photographer (Janine Gordon) sued another (Ryan McGinley), claiming that he had violated copyright law because they both had photos of people jumping in the air with their arms spread out, or kissing, or other such nonsense. Thank heavens, the judge saw through the claim and let common sense prevail. I mean, look at my last post. Are we going to say that everyone that ever took a photo of someone standing in the middle of a road or sidewalk with a neutral expression looking at the camera is infringing on, um, Sander's pose?
I'm no lawyer, but from what I have read in books about photography law I had always heard that you can't copyright ideas, only the actual products that come from those ideas. In other words, I couldn't stop someone from replicating all of my ABC Paris photos (cue shameless self-promotional plug). They could go and take the exact same photos (or so I thought) and it would not be my product, therefore, not protected. And none of that ever bothered me. I mean, good luck tracking down all those things.
But then I read what the judge said about Gordon's frivolous case. There was a lot of explanation about how the photos were not all that similar once you really looked at them. Wait! So if they were more similar, Gordon could have won? This didn't coincide with my understanding.
This led me to start reading the comments after techdirt's post. It wasn't exactly like reading Plato's Sophist ("lawyers suck!" is hardly great philosophy), but it's a pretty fascinating, and for the most part, civil, read. In my mind, commenter "Dandon TRJ" (a law student) is the interlocutor who gets to be Socrates. Not that his are the only smart comments. Go read the comments if you are interest in copyright issues. Toward the end, the discussion starts to stray into questions of whether photography itself if art. "Bnesaladur" imagines a world in which you have to watch how you stand lest you be infringing copyright and then makes the provocative assertion that "photography is not art" because "all you have is a near exact representation of the world." I don't think it's too difficult to cut through that argument, but I just may ask my students to do it and see what they come up with. Since I was just making up a syllabus for the critical theory class I'm teaching this semester, I couldn't help but think about all the hullabaloo (can't think of when I last used that word) over Plato's idea of the simulacrum (as in "similarity"). At the mercy of post-structuralist theorists, the idea became as complicated as copyright law. If you feel like putting on your black turtleneck, smoking a gauloise, and getting a hot cup of coffee at your local pretentious coffee house, you have months of mind-bending reading ahead of you. Non? Then check out the comments at techdirt.
I am happy the Judge dismissed the case.
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