This maze looks familiar(krazydad.com) |
This maze looks familiar(krazydad.com) |
http://yro-beta.slashdot.org/story/09/07/30/2055221/how-wolf...
The program itself is almost certainly copyrightable, but what about its output?
These mazes feel like a similar idea to me - he even mentioned that this particular one is generated by a "fibonacci spiral", so there is likely a compact mathematical description of its vertices, and a PRNG (further thought experiment: what if the "randomness" was generated by a true RNG?) along with its seed that was used to determine where the lines appeared. It's an artistic work, but the majority of the "work" was done by an algorithm - he didn't manually draw all the lines.
"original" boils down to "more creative than alphabetical ordering", and "tangible media" includes pictorial/graphic displays.
So yes, the maze is likely subject to copyright.
However, there's very little "creative expression" in the individual maze, as an algorithmic result, the creative expression is in the inputs, resulting in a "thin" copyright - only applying to virtually identical copies.
In the specific case, Kraft's maze is a significantly better maze - also evidence of the lack of individual creative analysis in the original.
There's definite copying - the styling and layout are too close for there to be otherwise, but the creative expression in the original is so minimal that it likely balances the fair use criteria (nature of the work, effect on the negligible original market suggest it is fair use, commercial use counts against fair use.)
Not sure which way a judge would rule. Kraft is probably very unhappy with their illustrator for not just creating an original maze...
However, if the maze is entirely the product of a random process then the online compilation could be protected as a 'selective' creative work, but individual mazes would not.
Note that even if each individual maze is eligible for protection that the author doesn't end up with copyright over Fibonacci mazes, it's only the creative parts, whatever aesthetic tweaks (or manual selection in the case of a compilation) were made that is covered. So you could produce a very similar maze with your own program using your own creative decisions without infringing.
That is not the law. The actual work must demonstrate creativity, and a mechanically generated works of this sort do not.
"The U.S. Copyright Office has taken the position that "in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable."
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
even if there was no creativity involved and thus the copyright would fail, it seems (IANAL) that it might put the melodies into the public domain, since how could somebody claim you had no right to use a melody that you had already published?
If I write a website and put thousands of mazes up, what difference does it make if I created them with a tool I wrote? Does the number of mazes created make a difference? Why?
I can copyright a computer program that is the binary output of a compiler...
I understand that in some jurisdictions reproducing a small portion of a larger work, then it may constitute fair use. Bullet point 3:
The amount and substantiality of the portion
used in relation to the copyrighted work as a whole
Of course, this is but one bullet point out of four, and the law is fuzzy, as it should be.
No, I don't believe so:
"The U.S. Copyright Office has taken the position that "in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable."
Kraft clearly nicked it, or where careless as to wither it was copyrighted, but we have now wondered into output of program territory instead of the much clearer area of did kraft just grab the first thing that they could find?
You won't succeed in suing them - so this is probably the best option he has.
> "So often we read of very large companies riding rough-shod over small businesses or individuals," said David Bradley, director of Pentaplex. "But when it comes to the population of Great Britain being invited by a multi-national to wipe their bottoms on what appears to be the work of a Knight of the Realm without his permission, then a last stand must be made."
http://krazydad.com/slitherlink/sfiles/sl_penrose_b001.pdf
Years ago, I sought (and received) permission from Penrose to use his tiling on these puzzles.
That's certainly got to be interesting/validating for the op though (albeit simultaneously violating/annoying).
Definitely curious to hear how Kraft responds; if op is willing to share even more about something he shouldn't have had to deal with in the first place that is.
Working for a media related company or similar he will have been told not to do that sort of thing, officially at least (it'll be in the company handbook which he'll have signed a document stating he has read and understood) - so yes if he is still there he'll get some of the fallout.
The company should have checks and balances on such things though, so they can't blame a sole individual and wash their hands of it without recall of the item and/or recompense to the creator they've copied.
No consumer packaged goods company, least of all a giant like Kraft, puts anything onto a box without many layers of approval and rounds of creative review. In this case, the buck presumably stops with the brand manager for the Mac & Cheese product. I doubt he or she would have even thought to ask about the IP origins of the maze when conducting creative review. Nevertheless, he or she bears some responsibility as the owner of the review process.
Most likely this maze was lifted and passed off as original by someone a bit lower down the food chain: an agency staffer, a freelance designer, or an artist at the company. But there is virtually no scenario in which that person's contribution wasn't reviewed a half-dozen times by people with managerial authority. At CPG companies, the package is an incredibly important and borderline sacred thing. Nothing gets onto the package by accident, and as such, it would be incredibly difficult for Kraft to argue its way out of responsibility.
Another possibility is that Nickelodeon (the owner of Spongebob) provided the artwork, including the maze, to Kraft. This makes identifying the proximately responsible party a bit trickier, but Kraft still bears a burden. It would also mean that two companies, and possibly two brand managers, had eyes on this.
As a graphics designer you should have a basic grasp of these manners, and respect them.
Obviously, this is very out-of-left-field and I don't believe it either, but it's not impossible that Kraft didn't plagiarise anything.
With regard to your question, it depends on whether it passes the Threshold of Originality: http://en.wikipedia.org/wiki/Threshold_of_originality
Not exactly intuitive, I'd agree; see e.g. this: http://ansuz.sooke.bc.ca/entry/23
(Oh, and it's "copyright")
Besides, this usage of "theft" is not dissimilar from the already well established usage of "stole" as in "he stole my idea." If an idea can be stolen, it can certainly be theft to take the product of an idea, at least colloquially.
I think we should all be grownup enough to recognise that ideas can't really be stolen either. We also recognise the value of copying ideas. If we recognise these things, then we should use corresponding language to reflect our intent.
> If you’re gonna steal a maze, you might want to try stealing from maze book #47, and do a horizontal swap on it before you rotate it 90 degrees.
Counterfeiting money and causing massive inflation is theft of value, regardless of whether any money actually exchanged hands.
Now I hope that Craft is classy in return, by contacting him and negotiating in good faith a reasonable fee for the use of the maze.
It was 1 designer tasked with putting a maze on it that did a google image search and came up with that result.
That by no means exonerates Kraft, but it can be helpful to put things in perspective sometimes. I would be willing to give them the benefit of the doubt, that if someone in a position to actually do something about it was made aware that they had mass produced copyrighted materials, they would be willing to offer a reasonable fee. However actually getting in touch with that person may be challenging without legal action.
I have conversations with (often the same) marketeers that they need to purchase the $9-99 font they've used in their design on almost every project. They send me copy often verbatim copied from the website they are "taking inspiration from". There is unsurprisingly little integrity in the industry. Bigger firms is sometimes slightly better since they have lawyers cracking down on this kind of behavior.
Source: I work for a software consultancy that primarily work with marketing firms.
https://webcache.googleusercontent.com/search?q=cache:krazyd...
Does this necessarily exclude a for-profit use, or does that have to be explicitly declared? IANAL, so I'd like to know.
Coupled with the fact that you automatically have copyright on copyrightable works, and that by default you need license to copy copyrighted works outside fair use and similar exceptions, I think it's clear that if these mazes are copyrightable and if the maze wasn't independently generated (both of which seem more probable than not), then Kraft owes him some money here.
Additionally, you don't have to provide a copyright notice or any licensing terms for your copyright to be valid an enforceable (with some very special exceptions blah blah).
http://krazydad.com/blog/2014/07/18/about-that-mac-cheese-ma...
I doubt he has the resources to fight it if they choose to fight. He would basically be hoping they would give him a settlement just to make him go away.
Filing a lawsuit just to get a settlement when you can't actually fight on the merits is not considered positive behavior (although it can be lucrative).
If you can't actually fight it on its merits because the facts and law don't back you up, I whole heartedly agree. If you can't actually fight it on its merits only because you don't have the resources to do so, it's more questionable.
And now the next maze to be copied by someone will be that one, and they'll argue that this statement is permission!
Then there is the choice of grid design (identical), entry and exit holes (identical).
OTOH one could argue that the maze itself does not fall under the scope of the Urheberrechtsgesetz because its threshold of originality is too low (no offense, it is after all auto-generated). But I'm no lawyer and this is just a spooky idea.
I was more coming from the idea that just because there are lots of them generated surely doesn't mean they fall outsidd the law.
Play it here: http://www.chiark.greenend.org.uk/~sgtatham/puzzles/js/loopy...
You can play penrose style puzzles by selecting the type in the furthest right drop down menu.
(beware, select custom and choose easy mode, becuase hard mode is hard)
I'd argue that if I wrote a program to generate a novel, that novel should be copyrightable.
The project you describe seems to be based on a patent-like idea of copyright, where infringement is independent of whether or not the work is an actual derivative of the protected work.
You use the term "act of creation" as if he didn't engage in it. Not sure how you can claim that he didn't create the melodies, he did, doesn't matter that he didn't ever hear them, neither did Beethoven (you get my point). If he had any musical training he could credibly state that he was creating a Philip Glass style composition exploring the space of melodies blah blah blah. You don't think a skilled musician could characterize and categorize the different elements of this work? If he was serious about it, he could call it his ring cycle and start playing it, all the way through, a one hour performance a week.
And then I pointed out, and you ignored, that even if he didn't go out and claim copyright infringement, there is still the point that he insulated himself in a certain way from infringement claims from others.
I think he made an interesting philosophical point, I think you should chew on it in a more interesting way. In a case of an actual claim of infringement, he created lawyer fodder that could drag through courts for years, had he been a musician.
No, I don't think he overturned copyright law. To a large extent, judges make decisions based on practicalities more than they do on the letter of the law. The letter of the law comes up when there are colliding practicalities, and ambiguity in the law. Still, I think it's a more interesting thought exercise than you are giving it credit for.
Whatever the case may be, Kraft should do the right thing here. That probably means paying KrazyDad a fee or royalty of some kind, commensurate with the standard that they'd pay a typical artist whose original work graced their package. They should also issue a formal apology and pledge to improve their review process.
If Nickelodeon / MTV Networks was also involved, things get messier, and maybe there's a he-said, she-said dynamic that plays out. In any event, none of these folks are dummies. I sincerely hope, and would even expect, that they'll contact KrazyDad to make remedy.
At the same time, the company will have taken an indemnity from the freelancer which means they can go against the freelancer for costs arising from a third party claim of infringement (as is the case here). This would give the company the ability to settle with the third party and then go against the freelancer for the sums.
The principal problem with this is that the freelancer is unlikely to have assets to back the indemnity (unless as a condition of their provision of work they were required to have in place insurance). Even with insurance of course, it may not be available if the freelancer has behaved fraudulently...
In a case as described there may be some sort of indemnity clause between the publisher (kraft) and the freelancer which passes the costs on to the freelancer under these circumstances.
The test for determining infringement is, more or less, the classic smell test: does it look like a duck, walk like a duck, and quack like a duck? Would a reasonable individual conclude, from visual inspection, that Kraft's maze is strikingly similar to the original maze? Even if there are some small changes here and there, it could still be found to be sufficiently similar.
For instance, if I tried to put out a version of a popular song that was ever so slightly different from that song, I'd be infringing if a reasonable listener found my version sufficiently close to identical. If I put out a book called "Jimmy Potter and the Sorcerer's Stone," and my work was more or less identical to "Harry Potter," with some character names and minor sequences changed, I'd probably be found to be infringing upon the original work.
[1] IANAL, but I've dealt with copyright issues, to a certain tangential extent, in a professional capacity.
[2] Note that we're talking about copyrights here, not patents, which are different animals altogether.
In this case, if the algorithm is one of a narrow range of obvious algorithms, "just happened to..." might be more believable.
Normally, though, algorithms are not copyrightable. Though Books about algorithms are.
In this case, the guy published a book containing a maze, so reproduction of the maze should fall under copyright.
"Good artists copy; great artists steal." -- someone a long time ago "UMMMMM, IT'S NOT ACTUALLY THEFT!" --you.
It seems clear to me that nothing of the sort of theft has happened, and at least some people would instead be flattered to have their work reproduced large scale instead of slinging accusations of theft. If it were me, I would use this to promote the value of my own work. Maybe I would try to talk to someone at Kraft before firing the lawyer cannons, perhaps just work out a deal where they give me some sort of recognition. Even recognising the copyright infringement, it seems to be on such small scale (one maze out of hundreds?) that it might be difficult to argue for damages incurred.
This person isn't flattered, but the language of "theft" indicates a graver damage than what actually has happened.
Is it because it isn't taking something without permission?
Is it because intellectual property isn't property in some sense?
Is it because the original isn't really "owned"?
Is it be because the owner still has the original?
Given similar reasoning, "identify theft" isn't really theft. After all, if someone "stole" my identity I'd still have the original.
1.) The specific maze style used, with the semi-random angled lines within a circle shape, isn't the most mathematically simple form of a maze. If it was a grid pattern in a rectangle, there might be a tiny chance of two people making the same maze, but to create a maze of that style would require more creative programming, with more tune-able parameters, and more decisions left to the implementer.
2.) In order to choose from the vast number of possible mazes that fit a certain pattern, the algorithm is almost certainly going use some random number generation. Even if two people were using the exact same maze algorithm, they would have to also have to use the same randomization process, and start with the same seed in order to arrive at the same maze. I guess it wouldn't be impossible for both people to explicitly choose the same initial seed, (or arrive at it randomly) but that would be very unlikely.
Having the maze verts in the same positions is possible and not too unlikely. Having the same walls is astronomically unlikely. Even if you had exactly the same algorithm (possible, but unlikely) and the implementations used the random values in exactly the same order, you'd also need exactly the same random seed. There are a lot of possibilities for that seed.
I've seen a lot of code that either forgot to srand(), or misused it in some way so the output was pretty determinate. There are also a limited number of PRNGs in use, and they're most definitely not understood well by the majority of programmers; the crypto community knows this quite well. A collision may not be so unlikely after all.
(Try Googling "41, 18467, 6334" for example. "41184676334" also brings up some interesting results.)
For example, here is some code I wrote to test my own prng:
srand(1000000); for( int i = 0; i < 10; i++ ) printf( "%d\n", rand() );
printf("====\n");
srand(1000001); for( int i = 0; i < 10; i++ ) printf( "%d\n", rand() );
And here is the result:
21585 18586 29373 4301 3304 21158 23657 21142 2144 26110 ==== 21589 29335 14469 28364 13618 25085 26770 18215 18656 19962
As you can see, they diverge really quickly.
The law here lags behind the technology. By procedurally generating something like a landscape, a programmer can creatively define a whole set of possible landscapes. It's fallacious to say that this can't involve artistic awareness and creativity. Here, the law is trying to apply 19th century models to 21st century media.
> It's fallacious to say that this can't involve artistic awareness and creativity. Here, the law is trying to apply 19th century models to 21st century media.
A problem with copyrighting mechanically generated works is there is no end to them. What awareness and creativity is shown by letting a computer make 1 million slightly different images?
All the creativity is in the programming, not in the result.
But this is problematic. Procedurally generated landscapes can still have a definite "feel" or "look." These attributes can be protected as "trade dress." But there is no way to preclude other attributes we haven't thought of yet.
A problem with copyrighting mechanically generated works is there is no end to them. What awareness and creativity is shown by letting a computer make 1 million slightly different images?
Yes, you're right, there are algorithms that actually don't show much creativity. But this is actually already covered in the "Threshold of creativity" laws -- if the declaration that the output of an algorithms cannot be protected is removed. If you apply most of the same "Threshold of creativity" laws to a notion of meta-creativity, you still arrive at a usable and coherent law.
All the creativity is in the programming, not in the result.
Clearly, the truth is that creativity can manifest in the result.
Also understand that modern technology makes the current formulation of the law problematic. What if I simply used cheap data storage to slurp the output of a program so that I could use the output of someone's copyrighted code without permission? I could imagine doing this to a procedurally generated MMO world. This would seem to make the practical effect of the law quite divergent from its intended effect. Introduce a notion of algorithmic meta-creativity, and the law would protect against that kind of infringement nicely.
That said, in many cases, it would be advisable for the copyright holder to not reserve copyrights for such media. But in that case, I think the providing the option is the wiser choice.
Maybe the best way to get a feel for it is to take a look at this page of maze generators: http://weblog.jamisbuck.org/2011/2/7/maze-generation-algorit...
If you fed in specific tuning parameters to the procedure and fine tuned them until you liked the output that might have a claim. But if you just let it work randomly and picked the ones you liked best that would not.
It's not enough to simply like the result, you have to actually do something to create that specific result.
"Even if the person carefully selected a site but then just left it there to record whatever would come, it's not clear that would be copyrightable."
But in this case he selected a site (wrote the code), recorded a pile of footage, and then went through and selected particular shots based on his own personal criteria.
If you leave a camera in public for a few days, then come back and edit the result into a movie you have copyright for the movie, but not for the individual stills that make it up.
To have copyright on the stills (rather than the compilation) you have to have some creativity into making them, not merely selecting them.
Identify theft is a kind of fraud or perhaps libel, but it's certainly not conventional theft.
Nevertheless, the term has taken on a life of its own, and that's just the way language works. The problem arises when people say inane things like "you wouldn't steal a car, would you?". That analogy is sort of like saying you shouldn't go on strike, after all, you wouldn't want somebody to strike you, right?
So, is it theft? Well, from a linguistic perspective: it's called whatever it's called. But it's simply deceptive to pretend that merely because the same word is used that the meaning must be equivalent too. It's particularly unfortunately that the manipulation of language is probably intentionally deceptive; the notion of intellectual property didn't arise amongst the average English speaker, but amongst a special interest group that stands to gain by causing this particular confusion.
there is some argument that it is conventional theft. It does, essentially, render the original unfit for use until considerable time is spent repairing it.
It really isn't the same thing. It's vaguely related, and that's fine, but pretending the two meanings are identical in an analogy (you wouldn't steal a car?) is still disingenuous.
If someone "steals" your identity, it isn't really theft sure. Really, you both have a pointer to that identity. The problem, which makes it a good idea for it to be illegal, is that you both have a pointer to the EXACT SAME identity. Thus, any destructive(or benevolent) changes they make affect your identity as well.
Contrast this with most forms of "copyright theft", where the original owner still has the original AND any changes you make to your copy have no effect on the original.
Suppose you write a book report for school and another student copies yours and passes their copy in first. You still have your original but it is significantly devalued. Passing it in may actually have negative value as you maybe accused of cheating.
It may not be theft but I think it hard to argue that it is not taking something of value without permission.
That's a preposterously loose requirement. Secondly, even in your example, the damage isn't primarily caused by the copying, it's primarily caused by the misrepresentation. If the copier had been truthful about the source, it's doubtful the original would have been much devalued.
In any case, clearly copyright violation can devalue the copyright. It's certainly not always the case (it may even increase the value of the copyright), but it's a serious risk. However, that still doesn't make it equivalent to theft, any more than vandalism, fraud, competition, criticism, libel, etc. are theft. Some of those are even considered virtuous - as a society we supposedly encourage criticism and competition (even if many sectors manage to pay only lip service to that notion).
That's trademark, not copyright.
If you carefully tuned your program to create a single result you found best that might be copyrightable.
On the other hand if you wrote a generic program that randomly adjusts the variables to make lots of nice looking landscapes then the landscapes are not copyrightable, even if you did a great job on the program so all the results were beautiful.
> Clearly, the truth is that creativity can manifest in the result.
That doesn't make it copyrightable. I could plant trees in a beautiful pattern, but I can not claim copyright on photographs taken of the result.
> What if I simply used cheap data storage to slurp the output of a program so that I could use the output of someone's copyrighted code without permission?
Not following. Does "cheap data storage" make a difference? How are you "slurping" the output? What sort of program is it?
> I could imagine doing this to a procedurally generated MMO world. This would seem to make the practical effect of the law quite divergent from its intended effect.
And what's the problem? The procedurally generated MMO world is not copyrightable. That's the intended effect - to only copyright what a person actually does.
You might be able to claim a dress trademark on the MMO world if it was distinct, but not copyright.
I never said it was copyright. Please readjust your mental model of who you're speaking to accordingly.
If you carefully tuned your program to create a single result you found best that might be copyrightable.
How is this different than carefully tuning your program to create a range of results with specific attributes? Example: All of the generated landscapes are aesthetically pleasing, but have enough open area next to obstacles to enable ambushes and also manage to look creepy at night... Such a result might indeed take
That doesn't make it copyrightable.
I'm saying that it should. IP laws date from a time where the kind of automation that makes the above possible was unthinkable. The assumption that an act of creation would result in a particular set of data is no longer warranted. Neither is the assumption that the automatic production of art is either not possible or would result in uninteresting and stereotypical output.
Not following. Does "cheap data storage" make a difference? How are you "slurping" the output? What sort of program is it?
Specifics aren't needed, but "cheap data storage" makes it possible to store the entire content of certain procedurally generated algorithms from earlier computer systems as files of ordinary size on today's typical machines. (Example: The entire Elite universe.)
And what's the problem? The procedurally generated MMO world is not copyrightable. That's the intended effect - to only copyright what a person actually does.
I'm saying that this very notion dates from a time when procedurally generated output was unimaginable to most people, and that to only copyright what a person actually does is trying to apply 19th century notions to 21st century technology. It's just like the early 20th century arguments for airlines having to pay farmers to overfly their land.
How can you extend copyright to include such a thing? Presumably you don't want to - but it on you to somehow distinguish between them.
Also, pre-computer automation was not as impossible as you might think, some examples: A double pendulum with a pen, a spirograph, a sand bucket on a rope, a spinning top with paint.
And see this reply from someone else: https://news.ycombinator.com/item?id=8032980 - generated artwork has existed before computers, and it is not copyrightable.
I have not completely decided if I would agree with your proposal or not, you would need to be much more specific about the limits of where copyright would not apply. Because as broad as you make it sound I would not agree, but if more limited then maybe.
How can you extend copyright to include such a thing?
Simple, you wouldn't. Yes, but this is already covered in the concept of sufficient creativity.
Also, pre-computer automation was not as impossible as you might think, some examples: A double pendulum with a pen, a spirograph, a sand bucket on a rope, a spinning top with paint.
Also covered by "sufficient creativity" for trivial combinations of such machines. Now, if it was a system which balanced the spirographs and double pendulums in a tangible and describable way as to produce a finely balanced effect.
And see this reply from someone else... generated artwork has existed before computers, and it is not copyrightable.
Yes, but the degree of automation we have today completely changes the technological landscape in such a profound way, that anyone should be skeptical if such laws still apply.
I have not completely decided if I would agree with your proposal or not, you would need to be much more specific about the limits of where copyright would not apply.
Common sense and the market could resolve a lot of the potential problems you see. What use is a tool like a spirograph if you can't use the output freely? Tools with restrictive stipulations will eliminate themselves from the marketplace.
Things like a program that simply enumerates all 32x32 pixel images are transparent enough that a judge should be able to adjudicate properly. I can see, however, that there would be more complex cases, and the cost to society may not be worth the potential damage IP meta-squatters would incur.
Notice also that many cameras these days will take many shots in rapid succession (http://en.wikipedia.org/wiki/Burst_mode_%28photography%29)
And a photo is different from a video in the timing factor.
BTW Copyright laws are impossible to mathematically define - they always have a subjective factor: Does this seem creative or not?
And damned straight this seems creative. At least as creative as a typical snapshot. Do you disagree?