EXPERIENCE OF NORTH AMERICAN SPECIALISTS ON RESEARCHES OF PHOTOGRAPHIC PRODUCTS AS OBJECTS OF THE COPYRIGHT

Abstract

In the modern epoch of digital techniques the photographic works gained considerable popularity and widespread use through the Internet. Because of easy access to the high- quality digital copies of photographs, unfair individuals in their business activities often use copyrighted photographic works without a license from the authors or copyright holders. Taking into account the actuality of this problem for the Ukrainian authors and national legal system, considering the prospect of establishing the High Specialized Court for Intellectual Property, and also in view of the urgent need of creating an adequate official technique for the research of photographic works as intellectual property objects, the experience of the United States specialists who studied the materials of court cases concerning infringement of copyright to the photographic works, has a significant practical value to the forensic experts of our country. Review study of the high profile case «Shepard Fairey v the Associated Press», known as «The Hope Poster case», as well as the conclusions of the expert commission, allows to consider main analytical techniques of research on photographic works as intellectual property objects, which have entered into the range of research means of modern North American court experts. The expert committee for this case reached the following conclusions: the photograph of B. Obama, created by photographers from the agency «Associated Press», cannot be considered as an original work; the graphic work under the title «The Hope Poster» authored by Sh. Fairey was found to be a variation of the photographic work of «The Associated Press»; in consideration of the low level of creative «transformativeness» of the image in the work of Sh. Fairey, his poster does not meet the conditions of the «Fair Use Doctrine». The findings of the experts forced the parties of court case to sign a conciliation agreement on such terms which are still not disclosed.