Who owns old icons?

[Richard Gaskin]

Richmond Mathewson wrote:

 > Rick Harrison wrote:
 >
 > "Unless Apple, Inc. has put all of HyperCard into the public domain,
 > the HyperCard icons are still owned by Apple, Inc."
 >
 > which seems pretty clear and unequivocal.
 >
 > However, old icons are a bit like my face:
 >
 > I own my face, and were somebody to mysteriously remove it and
 > graft it on to another person they would have stolen it.
 >
 > However, journalists and others photograph people's faces and
 > publish them everywhere without so much as a backward glance;
 > and they cannot be said to have "stolen people's faces", or even
 > their likenesses.

You did not create your face.  In the US, your image in public places is 
considered pubic domain, and can be photographed by anyone without 
requiring consent.  Photos of your face taken in private places will 
require your consent, or may be considered an invasion of privacy.  But 
it's the privacy at play with faces, not copyright (at least not in the 
US; YMMV); you did not create your face, and copyright is generally 
limited to the domain of created works.


 > Now, were I to post the HyperCard application, or, say, a ResEdit
 > document containing Hypercard icons on a website and/or user group
 > I would have stolen the icons.
 >
 > However, were I to post (as, indeed I have done) photographs (i.e.
 > screenshots) of HyperCard icons; this would be similar to an
 > individual publishing a photograph of me s/he took.

Actually, photographs of paintings are covered by the copyright of the 
painting being photographed.  There may be exceptions for incidental use 
(e.g., a painting in the far background of a photograph of a gallery), 
but the rules for incidental use are vague and the copyright holder can 
elect to have them tested in court.

Pixel-for-pixel copies of a work, even if saved in a different format, 
have been tested by the court and found to be under the protection of 
the copyright holder of the original work.  In some cases even modest 
deviance from the original may still be protected, unless the defendant 
can demonstrate that their work was indeed original and similarity is 
purely coincidental.

Oddly enough, fonts are a specific exclusion to this protection, having 
been defined by the courts as purely utilitarian and therefore 
unprotectable by copyright (given the artfulness required for font 
design I disagree with this ruling, but the courts rarely consult me 
when making judgments).  The underlying code of vector fonts can be 
protected as software instructions, but the actual rendered image of the 
glyphs themselves are not protected (hence the knock-off industry).

Screenshots which include copyrighted images may fall under "incidental 
use", but as I noted such usage is vaguely defined and may be tested at 
the copyright holder's election.


 > This discussion is rapidly reaching its natural end.

Yes, all citations of governing law have demonstrated that distribution 
of pixel-perfect copies of an entire collection Apple's icons represents 
a violation of their copyright.

If this seems unclear the best test of course is to verify this with 
Apple.  I'm not an attorney, and I haven't seen any of the attorneys on 
this list offer their opinions, so while no one here can be of 
assistance the original copyright holder is the one who can best answer 
your question.

-- 
  Richard Gaskin
  Managing Editor, revJournal
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