What gives you the right to scan that image?

One modern writer in a computer magazine humorously defined "copyright" as follows: "The indispensable common-law privilege held since time immemorial by owners of optical scanners to reproduce anything they can get their hands on as clip art."
This is not the case but is however, often the attitude.

Generally, anyone who copies the images or text of another without permission is guilty of copyright infringement. That person is also subject to a host of remedies, including actual damages, statutory damages, and impoundment of the infringing materials and other remedies.

Since a scanner can be seen as designed to do the very things prohibited by law, how can you use one of these technological marvels without danger of losing your job ... or your business?

In the current legal environment, copyright infringement is established when it is determined that:
1) copyrightable subject matter exists;
2) the "bad guys" must have had access to the "good guys'" copyrightable material;
3) there is substantial similarity between the original work and allegedly copied work.

Photographs and other images (i.e., drawings, paintings, etc.) are copyrightable.
Any copying by exact means such as photocopying, photographing, or other direct recording is not original work on the part of the person doing the copying. Any such person running the copying apparatus would be deemed to be an infringer if there is no difference between the work copied and the original.

Interestingly, copyright registration of an image, although not required by law, creates a presumption that a person copying had access to the image, since it is a public record available to all. Absent such registration, the plaintiff in a case must establish the "access" element of infringement.

The notion of substantial similarity is much tougher to deal with.

Since copyright does not protect the idea behind a work but only the work itself, when an allegedly copied work deals with the same idea as the original work, the court must find some level of originality in the allegedly copied work, to avoid a finding of infringement. Thus, two people taking pictures of a building on the same day from nearly the same spot both have original works, but the person who copies a photograph of the building taken by another is an infringer.

In addition to infringement for the exact copying of a work, a person is liable for infringement if the person copies a portion of a copyrightable work and the portion copied was a substantial part of that work. Thus, merely adding some additional elements in a graphic work will not free a copier from infringement so long as other portions of the work are copied from an original work done by another.

An exception to all this legalese is the concept of "Fair Use." This is an exception to the infringement of a work when the amount of the work that is copied is "not substantial" or the copyright serves a different purpose from the original, such as being for non profit or educational purposes. These factors and others are weighed in the context of whether the copying has had an impact on the plaintiff's market for the work.

Image Processing Implications

While there is not yet a great deal of case law in the area of image processing, enough court cases exist to provide those who operate image scanning systems some guidance. For example, the US court in Franklin Mint Corp. v. National Wildlife Art Exchange found that a copyright holder had the right to control how his "...or any fragments..." of the work reached the market.

Liability for infringement may also be found even if the copied portion of a plaintiff's work makes up a very small portion of the defendant's work. While this "fragment" test poses a serious problem for those who photocopy and create databases of copied work, there does appear to be some salvation for those who subsequently process images that rely on copied works.

If the image processing involves extensive and difficult techniques to achieve an image that is different from the original, such as pixel-by-pixel manipulation of stored data, the image processor may have reached the stage of an independently copyrightable work. Any such work, however, must still pass the test of no "substantial similarity" that will be put to a court.

In any case, the fair use exception will have to be dealt with by both the copyright owner and the alleged infringer. In cases where the market for the original work is affected by the allegedly infringing work, the person who copies the work is in deep trouble. If, however, the market for the new work created from the copying of the original work is different from that of the original creator's, and a substantial amount of complex technical work was done by the person copying the original work to give rise to a new image, infringement will not necessarily be found.

Conclusion

Getting back to the technological marvel represented by the new generations of scanners, a user should be careful of the use to which the resulting scanned images are put. If a database of images is being created that is simply used or disseminated, infringement or contributory infringement may be found if the images or fragments of images make their way in to the same markets as that of the original creator.