Legal Question in Intellectual Property in California
Photograph Copyright
I am an independant researcher. I was looking at a digital photograph taken by an aquantance of mine. The photograph revealed to me alone a significant discovery. Without mentioning the discovery I asked for a high resolution copy and my aquantance gave me one via email. Using the high resolution photo I was able to confirm my discovery. I do not wish to profit financially in any way from the photo, and I am happy to put his name on it as the owner. However the discovery I have made will have a significant impact on the community at large. In order to highlight the discovery I found it was necessary to enhance the photo to clearly reveal it. I want to email and repost the photo along with my enhancements to it in order to reveal my discovery and also to obtain the credit for discovering it. Does the fair use clause of copyright apply here? are the altered versions part of my own intellectual property? I have asked permission from my aquantance to use the photo in my research but I have not heard back from them. My plan is to email the photo to University and other research facilities and to repost it where he had originally posted it with my alterations as well.
B.A.H.
2 Answers from Attorneys
Re: Photograph Copyright
Copyright protection extends to the creative component. Just because someone states that they have copyright does not mean that is comes under the protection of the copyright acts. That said, yes there is an exception for educutional purposes. Though you do not wish to profit, there might be others ( universities or other ) that might. Does the altered version constitute your intellectual property, as before it might not be copyrightable but maybe covered under patent. You can not patent something that occurs in nature, patents are only for man-made creations. Call or email me for greater clarity.
Re: Photograph Copyright
Your alteration of the photograph is a derivative use, and thus a copyright infringement.
While the "Fair Use" defense (note that it's not an 'exception', but a defense.) might apply, you don't provide enough detail to say for certain.
Best advice is that you NOT use this photo without the owner's express, written permission.
I disagree with the notion that the photo may not even be protected by copyright. It's well established that a photo is copyright protected by virtue of the creative decisions made in composing, lighting, and exposing the film/sensor, etc.
The "enhancements" you have performed may or may not rise to the level of "original expression" which would give you a separate protectible interest.
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