The college basketball playoffs in the United States have just ended. Basketball sets the theme for the apparent resolution of a longstanding issue involving photography, and by implication many other areas of design.

If without permission, you re-use someone else’s photograph, you may be looking at paying for copyright infringement. This is assuming that you somehow got hold of a digital copy of the photo.

But what if you do not literally copy? What if you look at the photograph and decide to set up a shoot that will duplicate it closely? Is your photo, clearly intended to look like the other, an infringement? An urban legend states that it is. The three leading cases, however, say that it is not. This differentiates photography from music, where copyright infringement has been found where one piece sounded somewhat like one written by a different composer, even where there is no proof that the “copier” knew of the existence of the first piece of music.

In the three cases involving a “copied” photograph, including the one I’m about to discuss, the copier most certainly did know, and did intend to steal the concept. In the most well-known previous case, Skyy Vodka, whose signature blue bottle is quite attractive, was in talks with a photographer about an advertising campaign. He provided them with three sample shots that they liked very much, but they could not agree on a price to use them and in any event the photographer insisted on a licensing arrangement rather than a total transfer of rights. The company then found another, cheaper photographer, to whom they showed the first photographer’s work, saying, this is (wink, leer) the sort of thing we would like. The cheaper photographer obediently produced a series of very similar shots, which Skyy used in advertising. The first photographer then sued for copyright infringement.

He lost. And it took him ten years. The first judge, ignoring all the skillful lighting and background effects, ruled that the photographs were uncopyrightable because too much of them depended on the vodka bottle, which of course the photographer had no claim to. Having determined that no copyright existed, he had no need to rule on whether the second photographer’s work infringed it.

An appeals court, however, decided that the photos could be copyrighted and told the first judge to consider the infringement question. He did, and concluded there was none. He seemed to agree that one independently-shot photograph could theoretically infringe another’s copyright, but he said that in the vodka bottle situation “highly similar” was not enough, even granted that the second photographer was trying to copy the first one’s work. The two photos needed to be “virtually identical” for the plaintiff photographer to win, and of course they were not.

A second appeals court agreed. Here is the opening of their opinion: “This long-running litigation is fundamentally about how many ways one can create an advertising photograph, called a ‘product shot,’ of a blue vodka bottle. We conclude there are not very many.” This was in 2003, ten years after the original photographs were taken.

In other words, the rationale for requiring that the two be “virtually identical” is that otherwise too many legitimate attempts to portray the bottle could be challenged. That ruling left open the question: what if there is no doubt that the concept of a photograph was copied, but the photograph was so creatively arranged that nobody would ever come close to it by accident?

Just such a photo was taken in 1984. The photographer’s contribution was to instruct a college student named Michael Jordan, wearing his USA Olympic sweats, to assume a ballet-like pose while soaring to dunk toward a basket that the photographer had constructed to seem impossibly high. The whole scene is outdoors, not on a basketball court. It appeared in Life magazine and aroused the interest of Nike, which paid the photographer $150 to use it in a slide presentation.

The Jumpman logo.

The Jumpman logo.

Shortly thereafter, Nike decided that it needed a picture like it for its own marketing purposes, but Jordan had to be wearing Nike shoes, and also the attire of his new team, the Chicago Bulls. So they hired Jordan to duplicate his pose, leaping outdoors toward a basket that was at a more reasonable height than in the original, and hired a photographer to shoot at the same unusual angle. This new photo was used over and over to promote Nike’s fabulously successful Air Jordan line of shoes. Furthermore, they derived a bitmap image, a solid silhouette, from the Nike photo. This was used as the logo for the fabulously successful Jumpman line starting in 1987.

When the photographer saw the new Nike picture, he threatened to sue, so Nike paid him $15,000 for the rights to use its own image for two years, although apparently they continued to use it for a while afterward.

Sales of the Jordan-branded lines were in the billions of dollars. The original photographer thought it would be useful if he shared in some of the largess, so in 2015, more than 30 years after the photo was taken, he sued Nike for copyright infringement. The federal judge hearing the lawsuit threw it out without a trial, stating that neither the second photograph nor the logo was an infringement as a matter of law. In doing this, he relied not only on the vodka-bottle case, also on an earlier one involving a student of mine, who specializes in photographing babies. She had done a beautiful magazine spread in the 1980s, featuring nude babies apparently floating in air, carefully lit and tastefully presented.

A midwestern hospital thought that this would be just the thing for one of its brochures promoting its neonatal care facilities. It therefore contacted my student about purchasing the rights. Before anything could be finalized, however, objections were raised that her photographs showed the babies’ genitalia, which would no doubt be shocking to the hospital’s audience. They therefore hired another photographer to take extremely similar photographs, more discreetly posed, of different babies.

My student sued, and lost. The court acknowledged that the hospital’s intent was to copy her work, but informed her that designs, concepts, and lighting methods are not copyrightable, only her specific implementation with specific babies. So, the result again: the allegedly infringing photo needs to be virtually identical to the original or the first photographer is out of luck.

 

The 1984 original photograph by Jacobus Rentmeester.

The 1984 original photograph by Jacobus Rentmeester.

The case that was just decided is more complicated because, among other things, the same individual was photographed each time. Still, there is no question that the following things cannot be copyrighted in and of themselves.

*The particular pose, unusual as it is.

*Michael Jordan dunking a basketball.

*Michael Jordan playing basketball outdoors.

*The angle the photographer chose for the shot.

*A basketball hoop much greater than the regulation height.

However, if enough of these elements are included simultaneously, then copying all of them could, according to the court, result in a copyright violation. The Nike photo copied four of them. The logo didn’t copy any of them: it’s an unidentifiable silhouetted figure, based only on the Nike photograph, where the pose is slightly different than the original. Therefore, all the judges hearing this case agreed that the photographer had no valid claim against the logo.

The Nike photo, admittedly inspired by Rentmeester's.

The Nike photo, admittedly inspired by Rentmeester’s.

But the Nike photograph itself? Well, in addition to the lower basket, the background is totally different, as is the clothing. Jordan is older and the pose is, understandably since it is taken mid-air, not quite identical to the original. There’s a colorful sunset on the left, whereas in the original the sun is not colorful and it’s on the right. Jordan is much larger compared to the background in the Nike shot. The original focused the lighting on the ball, while the Nike version focused on Jordan’s face.

For two of the three appeals court judges, that’s enough difference. Their holding: if a nonexpert viewer can readily tell the two photos apart, then there’s no copyright infringement. Nike wins.

The third judge agreed with the others that the original photographer had no claim to the logo, which was where the big money was. As to Nike’s photograph, though, he would have sent the case to a jury to decide whether the two images were “substantially similar”.

Since the ruling wasn’t unanimous, I thought it might attract the attention of the Supreme Court. But no, they did not wish to take the case, which means it is now over, ending as the other two did with a loss for the photographer.

The lesson? Suing someone on the basis that a photograph, though admittedly not a direct copy of yours, is too similar, is not going to succeed even if it’s clear that the other photographer was intending to pirate whatever creativity you put into it and hope that his work would be mistaken for yours. All these photographers lost a lot of time and money chasing rainbows.

On the other hand, it is expensive to get sued, even if you eventually win. These three copiers at least tried to make a deal with the original photographers. That made their defense a lot simpler, and would be a wise choice for any photographer or designer in the same position.

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R.W.G. Hunt 1923-2018

by Dan Margulis on February 26, 2019

I recently learned of the loss of an outstanding contributor to the practical side of color science. Robert W.G. Hunt died in October at age 95.

He was a prolific writer, but he is best known for his massive text The Reproduction of Colour, now in its sixth edition. Most of it is quite geeky, with a lot of equations, tristimulus tricordering, and the like. It sounds like a great cure for insomnia, particularly considering that he was a director of research for Kodak in England. I don’t know much about its corporate attitudes across the Atlantic, but in this country Kodak was noted for its intransigent belief that all that was needed for perfect reproduction was accurate control of the color process.

Hunt was not like that, which may account for why he took early retirement and continued his research/writing as an independent. Yes, he was a great believer in process control, and in fact thought that color management was basically pretty easy, considering the advanced state of technology fifty years ago. However, he became puzzled when, due to natural limitations of presses etc., it was impossible to achieve color that was accurate to the photograph, yet people were willing to accept the reproduction anyway.

From that, it was a short step to the corollary: sometimes it was possible to achieve perfection, according to instruments, and yet human observers claimed it was not accurate. He summed it up: “To explain this apparent anomaly it has to be remembered that, although colours may be conveniently defined in terms of physical quantities such as spectral transmission and reflection curves, they are perceived as sensations in the mind. We must therefore consider the psychological as well as the physical side of the story.” This philosophy can be taken as the basis of the Picture Postcard Workflow.

He was the first (AFAIK) to say what we all know, that we are more likely to accept slightly inaccurate grass and other greenery than we are inaccurate fleshtones. And he added (although he was not the first one to say so; that was Ogden Rood) that a move toward green in a fleshtone is far more offensive than toward any other color.

He also put his finger on one of our biggest problems: the client who can’t explain his own reason for not liking a certain image—plus our own propensity to assume that things we think are technically wrong will therefore not seem satisfactory to the client. Hunt said it better than I just did: “The ultimate test of any colour reproduction is the opinion of the person who views it. But opinions differ, and, in cases where dissatisfaction is felt, the viewer often finds great difficulty in saying exactly why he does not like the sensations which he experiences when looking at the picture. Trained observers may feel more competent to name the faults in a reproduction, but training often makes an observer especially sensitive to certain faults which have been prevalent in his experience, while other faults, equally bad to a naïve (but less articulate) observer, he may overlook.”

Being a pioneer, being the first one to think about certain subjects, he got a few things wrong, sometimes understandably. He stated that it has been proven that a suntanned appearance is preferred in skintone reproduction, even when not found in the original subject. That’s overstated, but we have to remember that much of his practice had to do with fashion advertising, and that he lived in England fifty years ago. So, his experience of fleshtones wasn’t at all balanced: it was very skewed toward light-skinned young Caucasian women. And, if you’re dealing with a bunch of light-skinned, light-haired young women, he’s right, a suntanned appearance is preferred to the natural pinkness of their skin. But that theory breaks down with a more balanced population.

I have taken a few pot shots at him for this and other things, but he must be understood as a product of his times, In the land of the blind, the one-eyed man rules color management, provided that he exercises a little common sense. Robert Hunt did that.

In fact, whenever I spoke to a large audience, Hunt introduced me. While people were getting themselves seated, they would read the following on the auditorium screen. It’s a worthy thing to remember him by, because it is the whole case for color correction in a nutshell:

It is only on rather special occasions that the reproduction and the original are seen side by side: more usually the reproduction is seen at a different place or time, and the time interval may vary from a few hours to several weeks or even months or years. The human memory therefore plays an important part. It might be thought, then, that the process involved in appraising colours in a reproduction consists of making mental comparisons between the sensation produced in the mind by the reproduction, and a recollection from the memory of the colour sensation produced by the original object at the time when the picture was taken. It is, however, a fact that the average person generally feels competent to appraise the colours in pictures taken by people other than himself, of objects which he has never seen, at times when he was not present.

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The MIT study offers a unique opportunity to study the distribution of images. Most of the images that I and other authors collect for our own purposes test or prove a certain point. The MIT dataset, on the other hand, simply gathers together images that might be worked on professionally, whether dull or interesting, without respect to topic or category. For my own testing I chose 150 of these images at random. That’s enough to draw valid conclusions as to how often we see certain things.

Granted that these 150 images likely represent something like the distribution one would find in a professional retoucher’s real life, I can’t say that I was too shocked by the distribution of subjects, which I listed here, nor was I particularly surprised by the finding in the same post that PPW gets superior results close to, but not quite half the time. The MMM action was valuable in well over half of all images. On the other hand, it made a decisive difference only in around half of that half. This led me to ask myself why it was so effective in these images and less so in others. I learned a lot from the answers and in the next round of documentation I hope add this information.

Let’s start with a quiz based on these selections.

*How often do you think an image divides neatly into two parts, one more important than the other? I will call these “foreground and background” because that’s what they usually are, but any other obvious division into two parts is acceptable. Furthermore, for the sake of argument let us say that whichever half of the image is clearly more important shall be referred to as the foreground, even if it is in fact the background.

*In images like these, professionals often enhance the foreground in a way that costs detail in the background. This is considered sound practice, guiding the viewer’s eyes to the more important area. But how often is this undesirable? In other words, how often is the background interesting enough in itself that we should be reluctant to damage it?

The answers, and why they are important, will come at the bottom of the post.

You don’t have to work all that many years in professional retouching before you start to think you’ve seen everything. And, indeed, as far as image challenges goes, it’s hard to imagine now that I could face something completely surprising. Certainly, no single image in the MIT study presented a problem that I hadn’t seen before many times.

There were several cases where the retouching team did unexpectedly badly and a few where I simply screwed up. These cases prove only that we are human beings and have nothing to do with the merits of PPW.

A couple of results surprised me, where I was expecting an easy win for PPW and got something less agreeable, learning something from the experience. I’ll show those in a subsequent post. This time, I’ll talk briefly about the how often certain problems come up. This is an underappreciated topic. When we discover a method that works exceptionally well, it’s easy to overestimate its importance. Who knows how often images come along that would benefit from it?

The obvious example is the Bigger Hammer action. This is our most powerful means of enhancing highlight detail. At its best, it is staggeringly effective. At conferences I work with an image of Niagara Falls and draw gasps from the audience when they realize how it achieves what seems impossible.

That is the sort of this that lulls me into believing something is more important than is actually the case. Of these 150 images in only two cases do I believe that the Bigger Hammer made a serious difference. One of them, the fountains of the Bellagio, is shown in this post. The other was a night scene where the action got noticeably better detail in areas under street lighting. So I’m glad that the action was useful but it hardly is the kind of thing to create gasps of astonishment. I’m happy to have the Bigger Hammer available just in case a waterfall or tsunami image comes long but this study made me realize it is not one of the most important actions in the panel.

Meanwhile, two milder actions, the false profile/multiply set and the Velvet Hammer, proved their merit on many more occasions.

Back to the quiz. For around thirty years I’ve been telling people that they make too many selections. The argument has gotten very complex, with a lot to say on both sides. The origin of my statement, however, was sound. Back in the prehistoric days when computers were very slow and Photoshop not very capable, retouchers still had to work on images that involve a foreground object that the client is greatgy interested in, and a background of lesser importance. My teachings back then were: apply curves that accentuate the foreground. If this costs detail in the background so be it; this is how humans would visualize the scene anyway.

The counterargument: now that computing time is no longer a factor, why damage anything? Why not deselect the background, so that the foreground improves but the background doesn’t change for the worse? I have always replied that the change for the worse is actually an improvement that makes the image more natural and guides the eye to the proper place, and that the client generally prefers moves that accentuate the foreground.

The question was revived in recent years. The MMM action works as described above: a certain area is designated as representing the important part of the image, which is then enhanced at the expense of other things. Gerald Bakker, a student of PPW, came up with a counter-action he called MMM Finetuned. This action, which we incorporated into PPW panel v5, allows enhancement of multiple areas. It has many applications but the most important, in my opinion, is when the image does not match my description above because there is an objection to losing detail in the background. This defies the theoretical principle that concentrating on one area logically implies less concentration on another. Instead, it suggests that there is something so interesting in the background that the viewer should be given the option of appreciating it. This is the principle behind “High Dynamic Range” imaging: instead of improving the foreground at the expense of the background, improve both at the expense of neither.

The quiz, then: of 150 random images, how many neatly divide into two pieces of which one appears more significant than the other? And of these (call them foreground-background shots, even though it could be the background that’s more important) how often is the less significant piece nevertheless interesting enough to justify trying to hold or even augment its detail?

My guess at the outset was that two-thirds of the images—100, that is—would be classified as foreground-background, and of these perhaps 10 or 15 would have an interesting background. This was slightly too conservative: the final count was 102 and 21. So, Gerald’s action has more utility than I would have predicted.

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Introducing the PPW Tools Panel, version 5

by Dan Margulis June 2, 2018

The Picture Postcard Workflow is more than a decade old, but it never really caught fire until the time of Photoshop CS5, when an imaginative Adobe product called Configurator allowed us to store actions in the form of a panel for easier use. Even in those prehistoric times, PPW was highly automated, so assembling its […]

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When Is There No PPW Advantage? (The MIT 5k dataset 7)

by Dan Margulis March 27, 2018

The arsenal of weapons that we can deploy against recalcitrant images is powerful and impressive. When used prudently, that is. Assuming that because you have them you are guaranteed to create stunning imagery tempts you to try too hard to make it so. When this happens, as we’re about to see, the weapons, including PPW, […]

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How Often is PPW Superior? (The MIT 5k dataset 6)

by Dan Margulis February 12, 2018

Almost any method of correcting images works some of the time. For those interested in PPW, or in taking a four-day class on how it works, the question has to be how much of the time. The MIT study we’ve been looking at offers a unique opportunity to answer that question. It shows the real-world […]

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2018 Applied Color Theory Class Dates Announced

by Dan Margulis January 18, 2018

For those wishing to take color skills to the ultimate level, here are the two dates for Applied Color Theory classes in 2018. • ATLANTA, Wednesday, May 16, through Saturday, May 19. • SAN DIEGO, Wednesday, August 22, through Saturday, August 25. These classes—four long days, limited to eight persons—have changed the lives of many […]

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White Point, Dark Point, Auto Tone: The Simplest Move of All (The MIT 5k Dataset 5)

by Dan Margulis December 10, 2017

“And yet,” I wrote in my first book 25 years ago, “most color correction could be handled by monkeys…a numerical, curve-based approach calling for little artistic judgment…all the advanced techniques are inevitably based on these surpassingly simple ones. The by-the-numbers rules can be stated in a single sentence: Use the full range of available tones […]

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The MIT 5k Dataset 4: More on Averaging

by Dan Margulis November 28, 2017

The previous entry described giving each of five independently corrected versions 20% weight to create a new, “par” version. This can be called a “stupid” blend, in that no notice is taken of the merits of any of the five. Nevertheless, it appears that this average is better than all five of its parents in […]

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The MIT 5k Dataset 3: Effective Averaging Close-Up

by Dan Margulis November 18, 2017

Those interested in quality have always been willing to spend time to get what they considered the best possible results. For some years now I have been suggesting that this is not the best approach in our field. Instead, I have been preaching that it is a better use of time to do the initial […]

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