Morphing and the Problems of Interim Fixation

The Copyright Act clearly prohibits a party from copying a copyright-protected image or from creating an image "substantially similar" to a copyright-protected image. But what are the legal consequences if a party digitally scans a copyright-protected image, and then uses a computer program to "morph" the digital file into a new image that is not "substantially similar" to the original image?

To date, there does not appear to be any case that directly addresses the issue of whether scanning and morphing a copyrighted image constitutes an infringement, when the ultimate image is not substantially similar to the original. However, analogous cases involving intermediate copying of software suggest that the making of such copies falls within the copyright owner's exclusive rights under 17 U.S.C. § 106, and may amount to an infringement unless such copying is excused by the doctrine of fair use (or some other copyright defense). See, e.g., Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), amended, 1993 U.S. App. LEXIS 78 (9th Cir. 1993) (intermediate copying violates Section 106 but excused by fair use because copying necessary to effectuate lawful goal of reverse engineering software); DSC Communications Corp. v DGI Technologies, Inc., 1995 WL 526429 (N.D. Tex. Sept. 1, 1995).

Thus, systematic scanning entails a significant legal risk. If a great many images are scanned, the likelihood that a court would be willing to find a fair use is diminished. Moreover, as a practical matter, it is unlikely that an entity that engages in systematic scanning of hundreds of images will not, in some instances, occasionally create an end-product that is substantially similar to the original image.

The courts will inevitably have to address directly the copyright ramifications of "morphing," perhaps in the very near future. When they do, it is not impossible that they will carve out an exception to the prevailing rule that intermediate copying is no less an infringement than final copying. One argument in favor of such an exception would be that the practical effect of morphing an image is precisely the same as an artist simply looking at the first image and, inspired by it, creating a new, original image which is not "substantially similar." Morphing makes this process far easier, but, in both cases, the copy of the first image -- on the computer or in the artist's mind -- quickly vanishes and is permanently replaced by the new, original image.

As the law now stands, however, morphing -- particularly where a great many images are involved, and particularly where the end-product images would have the same purpose and character as the original images -- presents a significant legal risk.

LINKS:

A more extensive discussion of Interim Copying and Morphing under the Copyright Act

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