Professor questions morphing copyrights

Morphing is the process of gradually transforming one image into another by means of a computer. The automobile that changed smoothly into a running tiger was one of the first uses of morphing in a television commercial. Michael Jackson’s famous music video Black or White showed more than a dozen consecutive morphs of men and women of a variety of races changing into one another. Jackson changed from a black panther (the animal) to himself and back in the video. But morphing creates an unusual intellectual property problem: Who owns the copyright to a halfway-morphed image that combines equal parts of two images copyrighted by others?

Bearing in mind that one should obtain legal advice only from lawyers, here are some things to consider before you publish a morphed image. They are based on an explanation given by Paul Goldstein, a professor at Stanford Law School, during a recent seminar on intellectual property law hosted by the San Francisco Multimedia Development Group. Goldstein is the author of the three-volume reference Copyright: Principles, Law and Practice. He’s also counsel to the law firm of Morrison & Foerster of Palo Alto and San Francisco, a provider of legal services to the interactive media industry.

Images cheap, but tricky to work with

Morphed images catch your eye because you’re not sure exactly what you’re looking at. In a morph created from pictures of two famous people, you may think you recognize the face of a celebrity but not be sure which one. Morphs make good visual hooks on print ads and magazine articles. Initially, morphing required fabulously expensive proprietary software and powerful graphic workstations.

Now anyone can buy programs for about $100 that will morph one full-color still image into another on a PC, Macintosh or Amiga. (Gryphon Software’s Morph for the Mac and Windows is one example.) But don’t assume that just because you “created” a morphed image yourself with your own computer, you have the right to use it in any way you wish.

Derivative works. Do you need permission from the owners of copyrights to the images you combine in a morph? Yes, and they may want royalties. Worse, the morph is a “derivative work,” i.e., an adaptation of a pre-existing work, not a simple reproduction. So, if the original picture is recognizable in the morphed image, the owners might sue you if they don’t like the result. It may avoid trouble to show them the morph first and get their permission to use their work in a precisely defined way.

Multiple images can be combined into a single, final morphed image. But separate permission must be obtained for each copyrighted original image. Let’s say you start with a picture of Odo the shape shifter from the television show Star Trek: Deep Space Nine. Combine that with a picture of his snaggle-toothed little friend Quark, the Ferengi gambling den operator, to give a morphed image that looks a little like both of them. Then combine that morphed image with a picture of the beautiful Counselor Troi from Star Trek: The Next Generation. The resulting three-way morph would resemble all three characters at once and require three use permissions. (To see some examples of characters from these shows morphed together two and three at a time, look at the last page of the August 1993 issue of New Media magazine.)

WHO OWNS A NEWLY MORPHED IMAGE?

If you do manage to get all the required permissions, do you finally have a copyright to your morphed image? It depends on how the morphed image looks. A derivative work is protected by copyright “except to the extent that it incorporates subject matter that infringes a copyrighted work,” according to the law. That, in turn, depends on whether it “reflects substantial similarity of expression to the original images.”

So, strange as it seems, if someone can recognize Odo’s photo in your morph of him with Quark and Troi, that could cost you a copyright. In practice, the copyright office (or a court if things go badly) has a list of very specific ways in which one image can infringe on another. It determines how much of each occurred, and denies your copyright if it judges the total to be excessive. You can still publish it, if you don’t mind losing control over its use.

Conclusion. The situation’s not as bad as the headline of this article suggests. But you should have a talk with a lawyer who’s up to date on today’s digital media magic before you publish that morph of Mick Jagger to Sinead O’Connor.

William T. Park