I came across an interesting story (find it here) regarding an image used in a photography contest in the UK a few years ago. As the article notes, while on a cruise in Chile, a passenger, Sarah Scurr, snapped a photograph in 2006 and entered it into a photo contest in 2009 when she moved back to Britain.
A Chilean reporter, Marisol Ortiz Elfeldt, who took a similar picture, alleged that Scurr stole her photograph and posted it to the contest. The photograph ended up winning, and Elfeldt publicly denounced Scurr alleging copyright infringement. After further investigation, it turned out that both women were actually on the same cruise and snapped the same picture at roughly the same time.
This unlikely coincidence does a great job of showing how copyrights differ from other forms of intellectual property, specifically patents, in that even though someone has created an identical work, it may still be non-infringing.
If you are issued a patent, you are essentially issued a “right to exclude.” In other words, patent law gives the patent holder the right to exclude all others from making, using, or selling an invention. It does not matter if you create the same exact invention as the patent holder without even knowing about the prior invention or patent. If someone has a patent to an identical invention you have created, it is likely that person can exclude you from using it.
In contrast, copyright law prevents the copying of the expression of ideas. It does not prevent anyone else from independently creating the same or similar expression. “Copying” of the work is a fundamental element in finding infringement. The photographs mentioned in the article provide a perfect example. Had Scurr found the image online, edited it, and submitted it as her own, infringement would be likely. In this case, however, both parties snapped the image independently and the end result was nearly identical images. The “copying” element needed for infringement is missing as both images were original works of their respective owners.
