[notlegal][/notlegal]HOW ARE THE LIMITS DETERMINED?

To keep from running afoul of the photographer’s legal rights, a model (or her retoucher, acting at her request, although from here on I will refer to them jointly as “the model”) has to avoid creating “a derivative work”.  The reason is that copyright law gives certain exclusive rights to the photographer, and among them is the right “to prepare derivative works based upon the copyrighted work”.  So . . . don’t do that!

Of course, the next question is, “What does that mean?”

Glad you asked.  Let’s first define what is meant by “derivative work”.

Copyright law defines a “derivative work” as:

Title 17 US Code wrote:

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”.

For our purposes here, the part in bold is the key to this discussion.  It says (and the courts have made clear) that any change to a work isn’t enough to create “a derivative work”, but rather that the change has to be sufficiently substantial and original to qualify as “an original work of authorship”.  And it was on this fundamental notion that we based our premise in the earlier thread that very minor retouching, such as removing a zit, was almost certainly not going to cause the creation of “a derivative work”, and so was legally permissible.

Later on in this thread are posts borrowed from the earlier thread which give more detail on what the courts have said on the issue.

But that’s not as helpful as it might be.  If puts a floor on the question: “more than zero change is permissible” but doesn’t tell you how high the “how much is too much” ceiling goes.

So now let’s introduce a concept that was not in the earlier thread and see if it helps.

Scenes à faire

The scenes à faire doctrine derives from literary works, where there are recognized to be a large number of standard plot elements which have become so common that they have fallen into the public domain.  Under that doctrine, certain elements of a creative work are held to be not protected when they are customary to the genre.  The reasoning is that application of those ideas fails to be creative, because it is simply the application of standard ideas and processes in creating the work. 

Although literary in origin, the doctrine has been applied to photographs as well.  In ETS-HOKIN v. SKYY SPIRITS INC., 323 F.3d 763 (9th Cir. 2003), the court said, about a photograph:
Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea . . . .
Although the court did not explicitly invoke it, several commentators have noted that there was a reliance by the court on a scenes à faire test in accepting that the makeup designs in Cats were sufficiently original to qualify for copyright protection, even though general makeup work in ways standard to the industry does not.

(CARELL v. SHUBERT ORGANIZATION, INC., (S.D.N.Y. 2000))

That last point is important.  Makeup artists do not have a copyright when they apply makeup to a face – at least when the makeup is along the lines generally recognized in the industry.  No matter how well your MUA does “smoky eyes”, she doesn’t have a copyright when she does it, because the technique is widespread in the industry, and using it is not “creating an original work of authorship”, but just, in effect, doing what makeup artists do.

And that standard, which allows for some things that we might think of as “creative” to still not qualify, is what we rely on here.  My belief is that if the changes are:

(a)    reasonably necessary to the intended use of the picture,
(b)    follow industry standard practices,
(c)    do not introduce creative elements of their own . . .

then they are not “original” enough to qualify as “a derivative work”.  Hence they are not prohibited by copyright law, and doing them does not infringe on the rights of the photographer.

I believe that all of the items 1-9 listed in the original post meet those three tests.  There really isn’t anything original in the idea of getting rid of zits, correcting colors and brightness, cropping from 8x10 to 9x12 dimensions, putting on makeup (or making it look like you had), or fixing the picture so the horizon doesn’t tilt.  Nor is there anything original in industry standard ways of doing it.  It’s done all the time. 

As I have mentioned, others are free to have other opinions about what crosses the line and what does not.  I claim no warrant on truth here, just on throwing out the problem, some ideas to bring to bear in solving the problem, and a candidate solution set. 

I promised some further discussion of what courts have said about “derivative works”  Here is more than most of you will want to know.

A “derivative work” actually means something specific, and is defined in the law.  Minor changes such as retouching do not create a “derivative work”.  Commercial photographers are more than familiar with this.  It is normal for photos to be extensively retouched and modified before being used in editorials and print ads.  Nobody thinks twice about it.  Nobody screams "copyright violation" when an ad appears that is quite different from the picture as delivered to the ad agency.  It's just part of the business.

Here is a selection from an article written by an Intellectual Property lawyer which addresses the question”

II.B.1. Reproductions or Derivative Works?

There is also a gray area between reproducing a work and creating a derivative work. One does not need to produce a perfect copy in order to infringe a copyright. Otherwise, a copier could simply make a minor change (an unimportant word in a book, or a pixel or two in a computer image) and avoid infringing. The test for infringement established by court cases is whether the copy is “substantially similar” to the original work. There is no hard-and-fast rule determining when something is a substantially similar copy, and when it is a derivative work, since both will incorporate the original work in some way and also have changed material. (There are few hard-and-fast rules in intellectual property law.) But the touchstone for a derivative work is the “recasting, transforming, or adapting” of the original work, often to a new form.

Source:   

You will see the claim addressed head on by federal Appeals Court decisions also, which I will quote in subsequent posts.
Here is federal Appeals Court decision, which deals with the issue of what is meant by “Derivative Work”:

The district court rejected both aspects of this argument -- that the piano-vocal or any other Bourne-authorized arrangements were derivative works and that all relevant performances were in fact performances of Bourne-authorized arrangements. In finding that the piano-vocal arrangement is not a derivative work, the court relied on a close reading of the statutory definition of a derivative work and inferences regarding industry practice. 841 F. Supp. at 121. For convenience, we repeat the Copyright Act's definition of a derivative work as a work based upon one or more preexisting works, such as a . . . musical arrangement . . . motion picture version, sound recording . . . 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." Source:  17 U.S.C. § 101.

The district court found that the first sentence of that definition, which plainly identifies a "musical arrangement" as one type of derivative work, must be read in conjunction with the second sentence's requirement of "modifications which, as a whole, represent an original work of authorship." 841 F. Supp. at 121. Therefore, according to the district court, not every musical arrangement is entitled to derivative work status. The arrangement must be an original work of authorship. The court then asserted that Bourne's claim that Berlin's arrangers somehow exercised authorship by turning the lead sheet into a commercially exploitable piano-vocal arrangement was "contrary to the ways of the trade." Id. The court inferred that Woods "doubtless played the song for Berlin when he brought it into the firm," id., and that, at the very least, he must have approved the piano-vocal arrangement before it was published and made available to the public. The court concluded that, "[a]ccordingly, the very first piano and voice version that was sold could not possibly be a ´musical arrangement' making it a ´derivative work' of the lead sheet." Id. The court went on to find that none of the printed or (with one minor exception) performed arrangements were derivative works. Id. at 122-23.

1. The Standard of Originality

In order for a work to qualify as a derivative work it must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989). The basis for copyright protection contained in both the constitution and the Copyright Act is originality of authorship. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (in banc), cert. denied, 429 U.S. 857 (1976). While a certificate of copyright registration, such as the one that Berlin obtained for the piano-vocal arrangement, creates a presumption of copyrightability, the existence of a registration certificate is not dispositive. Weissmann, 868 F.2d at 1320.

We thoroughly discussed the standard of originality in a derivative work in our in banc decision in Batlin . There we held that "there must be at least some substantial variation [from the underlying work], not merely a trivial variation." Batlin, 536 F.2d at 491; accord Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980) ("[T]o support a copyright the original aspects of a derivative work must be more than trivial."). Further, "the requirement of originality [cannot] be satisfied simply by the demonstration of ´physical skill' or ´special training' . . . ." Batlin, 536 F.2d at 491; see also Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 170 (S.D.N.Y. 1993) (discussing Batlin ). Our discussions of the originality standard in recent decisions, such as Weissmann, 868 F.2d at 1321 and Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988), upon which Bourne relies, do not render the Batlin standard inapplicable. See Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir. 1994) (relying on Batlin as authoritative statement of originality requirement).

In Batlin we warned that "[t]o extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." 536 F.2d at 492. At least one other circuit, relying on this court's opinion in Batlin , has advised special caution in analyzing originality in derivative works, since too low a threshold will "giv[e] the first [derivative work] creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work." Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir. 1983). As the Gracen court explained in discussing the originality requirement for a painting derived from a photograph, there must be "sufficiently gross difference between the underlying and the derivative work to avoid entangling subsequent artists depicting the underlying work in copyright problems." 698 F.2d at 305. This observation may be particularly relevant in the musical context. While it is easy enough to describe the threshold of originality as being low, it is difficult to translate this standard from one medium to another. See Tempo Music, 838 F. Supp. at 170 ("[T]he risk of copyright confusion seems particularly significant in music cases given that finders of fact often lack musical expertise."); 1 Nimmer

Source:  Woods v. Bourne Co.,   … 47421.html

Of all the federal circuits, the Ninth is the most restrictive on their interpretation of what constitutes a derivative work.  However, even there, they recognize that more than a trivial change is needed.

Here, for your reading enjoyment, are the approved jury instructions to be given to juries in cases of claims of derivative work copyright infringement in the 9th circuit.  Please note the part that I have highlighted in bold.

Ninth Circuit Model Civil Jury Instructions
17.13 COPYRIGHT INTERESTS—DERIVATIVE WORK
(17 U.S.C. §§ 101, 106(2))

A copyright owner is entitled to exclude others from creating derivative works based upon the owner’s copyrighted work. The term derivative work refers to a work based on one or more pre-existing works, such as a [translation] [musical arrangement] [dramatization] [fictionalization] [motion picture version] [sound recording] [art reproduction] [abridgement] [condensation] [, or any other form in which the pre-existing work is recast, transformed, or adapted]. Accordingly, the owner of a copyrighted work is entitled to exclude others from recasting, transforming or adapting the copyrighted work without the owner’s permission.

If the copyright owner exercises the right to [create] [allow others to create] a derivative work based upon the copyrighted work, this derivative work may also be copyrighted. Only what was newly created, such as the editorial revisions, annotations, elaborations, or other modifications to the pre-existing work, is considered to be the derivative work.

Copyright protection of a derivative work covers only the contribution made by the author of the derivative work. If the derivative work incorporates [pre-existing work by others] [work in the public domain], the derivative author’s protection is [limited to elements added by the derivative author to the [pre-existing work of others] [public domain work]] [, or] [limited to the manner in which the derivative author combined the [pre-existing elements by other persons] [pre-existing elements in the public domain work] into the derivative work].

The owner of a derivative work may enforce the right to exclude others in an action for copyright infringement.

Comment

In addition to the criteria set out in this instruction, in order for a sound recording to qualify as a derivative work, the actual sounds fixed in the recording must be “rearranged, remixed, or otherwise altered in sequence or quality.” 17 U.S.C. § 114(b). If a sound recording is at issue, the instruction should be adjusted to account for the § 114(b) factors.

“The copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work . . . [and] . . . is independent of . . . any copyright protection in the preexisting material.” 17 U.S.C. § 103(b). See also Stewart v. Abend, 495 U.S. 207, 223 (1990) (aspects of a derivative work added by the derivative author are that author’s property and elements drawn from a pre-existing work remain the property of the owner of the pre-existing work); Batjac Productions Inc., v. Goodtimes Home Video, 160 F.3d 1223, 1234-35 (9th Cir.1998) (under 17 U.S.C. § 103(b), as under 1909 Act, a copyrighted underlying work remains copyrighted even if the derivative work based on it enters the public domain.)

In order to qualify for a separate copyright as a derivative work the material added to a prior work or the manner of rearranging or otherwise transforming a prior work must constitute more than a minimal contribution or a trivial variation. See 1 Nimmer, supra, at § 3.03. A derivative work is saved from being an infringing work “only because the borrowed or copied material [in the derivative work] was taken with the consent of the copyright owner of the prior work, or because the prior work has entered the public domain.” Micro Star v. Formgen, 154 F.3d 1107, 1112 (9th Cir.1998).

Once again good reading Roger. I just hope this one doesn't degrade into a huge argument over the "what ifs" and picking apart every last word.

I'll throw one thing out there as someone who has little experience in the field: Derivative work has been described to me as a work that is different enough from the original where the average person would, without prompting, recognize it as being a different work. I'm sure this isn't really a legal determination, but more of a general rule of thumb used as a guideline.

At any rate, thank you again for restarting this topic.

Alexandra wrote:

So if you'd like to state the limitations or exceptions to the amount of retouching of an image that a model can do, are you making a contract for the model, or a release?  A release just gives the model permission to use and print the images as necessary for his/her portfolio, right?  A contract would imply restrictions to usage and image alterations?

No.  A release gives the photographer rights to use the model's likeness.  A USAGE LICENSE is what the photographer gives the model to spell out her rights, and that's where retouching language should go, NOT in the model release.

You CAN incorporate the release & the usage agreement in to a single document as part of a contract or not, but many people (including the OP here) have spelled out in the past why that's a bad idea.

It's best to have a release, a usage agreement, and a contract.  All separate.  I would GUESS (but might be wrong) that it wouldn't be a HUGE mess to add the usage license/agreement to a broader contract, but the release needs to be on its own.

Lumigraphics wrote:

I'll agree with 1, 4, 6, 9, and 11. But altering the look of an image IMHO is not only edging into copyright infringement but also into fraud by passing off an altered image as the photographer's work.

Is it fraud if there is no photographer credit given?  For instance, when an agency uses a model's image, they typically will not credit the photographer. 

If it's on a comp card (which is a use frequently authorized within the scope of the model's usage license) the print process has to change from RGB to CMYK - that changes relative tonal values; it may also require slight corrections to brightness or color to accommodate the printing process used.  If such corrections are needed to meet the demands of an authorized use, can they be made without specific permission by the photographer?  I would suggest that in authorizing use on a comp card, he authorized by implication whatever reasonable and customary changes need to be made for the picture to be suitable for comp card use.

These are real-world issues that models face daily.

Lumigraphics wrote:

FWIW, I am not in favor of models having any right to alter an image whatsoever without permission from the copyright owner, at least not if they want to redistribute it. What you are suggesting is along the lines of "minor corrections." Well, where do you draw the line?

The whole point of this thread is to discuss the question of where to draw that line.  I suggested some likely places, and why; others can suggest other places.  That's what a conversation is all about.  I don't claim to have the answer.

Lumigraphics wrote:

It isn't fair use either.

Which is why nowhere in my discussion did I mention Fair Use.  Nothing I have said depends on Fair Use.

Lumigraphics wrote:

And if it isn't a derivative work, AND it isn't the original work, what the hell is it? You are inventing some third category which is not accounted for in the law.

I'm not inventing anything.  I am pointing out that the law distinguishes between "derivative work" and "not a derivative work, but not 100% original either".  If you insist on labeling that third category, feel free.  Not sure what to do with the label, or why we need it.

If, for instance, the picture needs to be resampled at a little bit lower jpeg compression ratio to allow it to be used for an authorized use, it's not "the original work" anymore.  It has changed, although in subtle, perhaps imperceptible ways.  What category is that?

Emeritus wrote:

Mike Serafin wrote:

I'll throw one thing out there as someone who has little experience in the field: Derivative work has been described to me as a work that is different enough from the original where the average person would, without prompting, recognize it as being a different work. I'm sure this isn't really a legal determination, but more of a general rule of thumb used as a guideline.

[notlegal][/notlegal]
As Marc has pointed out, there may be other issues beside the "derivative work" determination.  There is no bright line; and as I tried to point out, different jurisdictions have drawn the line differently.  But we have to make reasonable assumptions about what we can do to meet our business needs, and I'm trying to suggest an approach that is more flexible than "you can't do anything" (which isn't true) and still have reasonable guidelines.  Business people need to know these things.  It's not just models that have to worry about these issues; model agencies, print shops, magazine publishers and many other businesses have to face the same problem.

I'll add a bit to it, then. Each photo shoot between a photographer and a model has a purpose. That purpose may be for publication, it may be for portfolio use, it may be for comp cards, or various other reasons. If the model is compensated with images, they should be images that will meet his/her purpose. The typical TF* would be for portfolio use/development. If the photos aren't up to the standards of the photographer's other images as shown in his/her portfolio and don't meet the standards the model needs for his/hers, then the model should be able to make the appropriate alterations in order for the photos to be of use.

I will compare this to contractor work. If I view a contractor's showroom for a bathroom remodeling job, then hire him to come and remodel my bathroom, I expect the work to be completed to the point where it looks and functions as it normally would. If the cabinet doors are crooked and won't close, the faucet drops, and toilet leaks around the seals, it's on the contractor to make it right. If the contractor won't and I have to, I feel confident enough that the courts would rule in my favor and I would be reimbursed whatever I had to put out to have it fixed to a normal, usable standard.

Granted, contract work and modeling are different, but I believe the courts would hold to the same idea. The intent is the model is getting a usable product based on the photographer's displayed work (promise of quality?) and if what the model gets is not usable, he/she has the option to make it usable.

This alteration must be within reason, though. I would refer back to your OP and say that liquify and drastic alterations to the model's actual appearance would be over the line, but removal of zits, blemishes, fixing of clothing issues, etc. would be OK. Basically, anything considered temporary and/or normally taken care of is fair game.

AVD wrote:

Purpose is key.  But the purpose if for both parties not just the model. 

We all assume the goal is beautiful images. But what if the goal is to show pain and anguish at having imperfect skin at an important event?

This, it seems to me, fairly illustrates a core problem:  that of purpose.

It may well be that the photographer's purpose and the model's are very different - or that the photographer discovers a new purpose after the shoot that he didn't have originally.  Your example seems to me a good one of that possibility.

It's very unlikely that the photographer said, "I took a picture of you for the purpose of showing pain and anguish at having imperfect skin at an important event.  Please sign this release."  The model's perception of most shoot purposes would be quite different, and her purpose is served by removing that zit.

Although this is a discussion of legal issues, one might raise the ethical question of the propriety of the photographer's actions, and then wonder if he doesn't have a bit of comeuppance due him if she does post that retouched picture and cause people to question what he did?  It would seem to me that he crossed a moral line, even if not an ethical one, and that's not a really good time to be suing someone for "copyright infringement".  But, as I said, that's not a legal argument.

So too with "a nipple showing".  While it might have been "the purpose" of the shot at the time, the larger purpose is to make useful pictures for both the model and the photographer, as you suggest.  When "as shot" is not useful to the model, and a simple change can make it useful, I think it is ethically permissible to change the shot to make it useful.  Again, that is not a legal argument.  (As an aside, I have several times modified pictures to get rid of a "nipple slip" so that a picture could be used by a model.  Not legally relevant to this issue, since I did it, and clearly my rights were not violated by doing it, of course.)

Lumigraphics wrote:

IMHO, the line is crossed when a change is an artistic one instead of a technical one. Zapping a zit is a technical change. Altering tone or color balance is much closer to an artistic change.

But, it's hard (in my mind) to create a bright line rule based on that:

Emeritus wrote:

If it's on a comp card (which is a use frequently authorized within the scope of the model's usage license) the print process has to change from RGB to CMYK - that changes relative tonal values; it may also require slight corrections to brightness or color to accommodate the printing process used.  If such corrections are needed to meet the demands of an authorized use, can they be made without specific permission by the photographer?  I would suggest that in authorizing use on a comp card, he authorized by implication whatever reasonable and customary changes need to be made for the picture to be suitable for comp card use.

Even when colorspaces are changed from RGB to CMYK to allow printing, the intent is to get as close to the original color balance and tone as possible. The client will use matchprints, soft proofs, profiling, etc and often a lot of time and effort is spent on color management.

Again, my "bright line" if you will is intent. Are we doing our best to render the original artist's creation or are we deliberately making changes?

Let's go back to those OJ Simpson covers...what if the original was dark and sinister and instead of Time darkening the image, Newsweek had deliberately lightened it to make him look less threatening? I understand that news ethics and standards are different than in modeling; forget that issue for a moment.

Making changes for technical reasons is ok; making changes for artistic reasons is not. So fixing color balance to eliminate a nasty, unnatural green cast would be fine while cranking the saturation up to 11 would not be ok.