Could the photographer be sued for posting this photo-card on Flickr?

Photo by Helen Haden CC BY-NC 2.0

I watched Vi Hart’s supremely articulated YouTube presentation, Happy “Happy Birthday” Day, with exasperation at how law devised to protect rights is used to infringe on them and exploit them for gain beyond the scope of its intention. I may be being naive about this and if I studied copyright law I might find that the origins are in fact based on cases of exploitation, but I don’t want to know that so I’ll maintain some faith in the fairness if the legal system in my naivety . I was pleased to read that in fact the “Happy Birthday to You” song was placed in the public domain in February of this year after a successful U.S. Supreme Court challenge of the patent that Warner/Chappell Music had claimed since buying it in 1988. I was chagrined to find out however, that I had been doling out false information telling a few people recently that the Walt Disney Company held the copyright to the “Happy Birthday to You” song. Where did I get that twist on the story from?

So the photographer won’t be charged with copyright infringement now and probably wouldn’t have been before as long as she wasn’t making money from her card.

I share in Brad’s “Digital Confusion”, over trying to determine when to be concerned about setting out licencing of our intellectual property. If you can only license an intellectual property once it is documented in some form then it reminds one to consider how trustworthy the individuals with whom they discuss their ideas are. With photography this documentation is straightforward since a photograph recorded onto either film or digital memory is considered fixed in a permanent form. Photographs that are both “original” and “fixed” in a tangible form are considered “artistic works” and are protected under copyright law in Canada. For a very informative discussion of copyright and photography in Canada and some very interesting legal cases around what is an original photograph, see the article “Copyright and Privacy in Photography”. As I mentioned in a previous blog, the online photo management and sharing application Flickr provides ready access to information for both the photographer and the downloader on different types of licenses available through the Creative Commons and how to properly use them.

Where copyright or license protection begins is less clear with different types of intellectual property. In Canada, an original literary, dramatic, musical or artistic work is automatically protected by copyright the moment you create it. But how do you prove when you created it? Does describing a concept in an email constitute documenting it? I certainly use email correspondence as a way of “documenting” discussions but I don’t know if would hold up in copyright law. The interpretation of the copyright law or license may be further confusing, as in the case of the “Happy Birthday to You” song, where the U.S. Supreme Court ruled that the copyright registration that Warner/Chappell claimed, applied only to “the specific piano arrangement of the song and not to its lyrics and melody”.