An article from PetaPixel illustrates a fundamental but sometimes misunderstood principle of copyright law: copyright infringement requires copying. Unlike trademarks and patents, which can be infringed regardless of whether the infringer is aware of their existence, copyrights can only be infringed if the infringer has access to the copyrighted work and engages in actual copying of the work. As such, an independently created work of authorship, by a person (or more than one person) who has never seen the work alleged to be infringed, cannot give rise to a copyright infringement claim, even if the independently created work is very similar or even identical to the allegedly infringed work. Unsurprisingly, the independent creation of two essentially identical works of authorship by two different authors rarely occurs, and most works of authorship that are essentially identical to existing works result from copying. However, “rarely” does not mean “never.”

As the article reports, a UK-based photographer named Sarah Scurr was accused in 2015 of copyright infringement for a 2006 photograph of an iceberg off the coast of Chile that she entered in a photo competition in 2009. The accuser, Chilean photographer Marisol Ortiz Elfeldt, alleged that Scurr had taken one of her photographs, edited it, and submitted it to the competition. The sponsor of the competition compared and analyzed the original images from both photographers, which to the unaided eye appear to have come from the same original image. However, upon closer examination, slight differences were detectable in the perspectives of the two images, leading the sponsor to conclude that “the two women captured nearly identical photographs of the same scene at roughly the same moment and from roughly the same vantage point,” which “lead to the remarkable conclusion that the two women were standing beside one another when they took the same photo just seconds apart.” No copying, no infringement. Apparently, it happens. Read the full article and compare the two images here.

By Bernie (Own work) [Public domain], via Wikimedia Commons.

Reposted from PetaPixel.