Aerial photography, cock fighting and vodka bottles

Big Important Warning. This post argues that it is legal to trace from Google-provided satellite imagery and upload the results to OpenStreetMap. Do not do this. “Legal” is one thing; “accepted by the OSM community” another; and “liable to expose a not-for-profit Foundation to a lawsuit from one of the world’s biggest companies” something else entirely. Seriously, don’t. This post is here for interest and to start a discussion.

Since the year dot, it’s been accepted within OpenStreetMap that you don’t trace from anywhere without express permission (Yahoo!) or a really clear public domain waiver (US Government stuff). And you definitely, definitely don’t trace from Google satellite images.

That said, since about the year dot+1, we’ve had this little sentence which I put in the FAQ back on 6 December 2005:

“It’s not yet clear whether it’s ok to create a derived work from aerial photography: some readings of UK law suggest that you can do this without ‘inheriting’ the copyright in the photography. A definitive ruling on this could open up new avenues for Openstreetmap and similar projects, but in the absence of such a ruling, we’re continuing with the approach of sourcing our own, 100% independent data.”

So three and a half years on, let’s get a bit more definitive.

Bauman vs Fussell

I’m indebted to The Law of Photography and Digital Images by Christina Michalos for several crucial points, and to the Squire Law Library in Cambridge where I was able to consult it. Simon Stokes’ Digital Copyright has also proved a useful primer in related issues.

The question is: does tracing features from an aerial/satellite photograph (I’ll refer to them as aerial throughout) infringe any copyright in the aerial photograph?

The clearest case is Bauman v Fussell (UK, 1953). In this case, a painter created a painting of two cocks fighting, based on a photograph. The only element derived from the photograph was the position of the birds. Michalos summarises the judgement thus:

“1953: Bauman v Fussell (UK) held that the positions of birds not under the photographers control in a photograph not a substantial part of the photograph. A painting copying those positions was not infringing.”

Three judges ruled in this case: Lord Justice Somervell, Lord Justice Birkett, and Lord Justice Romer. The key issue, according to Michalos, was “whether the defendant’s painting reproduced a substantial part of the photograph”.

Somervell and Birkett believed it didn’t, thereby carrying the majority verdict. They concluded that the positions were not a “substantial” part of the artist’s copyrightable work (OSM legal eagles will recognise the word) and therefore could be copied. By analogy, the positions of roads, buildings and other features on an aerial photograph are not a substantial part of the copyright.

Romer, disagreeing with Somervell and Birkett, said the positions of the birds were indeed a substantial part:

“The appellant did not arrange the position of the birds, but no doubt he waited for the moment to take the photograph when the birds were in the position he wanted them to be and his photograph produces the position.”

But, in fact, even Romer’s viewpoint supports the theory that one can copy from aerial photography. Romer is saying here that the photographer’s skill in capturing the moment produced the original, copyrightable work which was infringed. This cannot apply to aerial photography. There is no originality in an orthophoto: by definition all orthophotos are essentially the same. As Michalos says:

“It is submitted that the decision in when to take the photograph and the angle to take it from, particularly in a fast moving event such as a cock fight, would require sufficient skill as to establish originality. This can be distinguished from a photograph where the relative positions of object do not form part of the protectable originality, such as buildings in relation to each other or the permanent setting of a monument.” (my emphasis)

So all three judges in Bauman v Fussell establish that there is no infringement in an activity such as tracing from aerial imagery.

Antiquesportfolio.com v Rodney Fitch & Company

Fast-forward to the 21st century and we have another very relevant case – and one which is reasonably well documented on the Internet. It’s a particularly interesting case.

Fitch had designed the branding and website for antiquesportfolio.com. For this he needed photographs of antiques; so he scanned them from Miller’s antiques encyclopaedia. At the same time, he also produced vectorised tracings of various of these antiques, for use in logos and business cards.

Antiquesportfolio.com claimed that Fitch’s work was an infringement of Miller’s copyright and therefore not usable, so sued for its money back.

The photographs themselves, of these 3D objects, were judged to be copyrightable and therefore Fitch had infringed. Michalos again:

“It was held in respect of photographs of antiques designed to bring out particular features of the objects, that the positioning of the object, the angle, the lighting, focus were all matters of aesthetic or commercial judgment sufficient for copyright to subsist.”

So the photographs themselves are copyrighted. This is no great surprise. But the judgement goes on to say that tracing from these photographs, as Fitch did to create logos, does not infringe this copyright.

“I do not consider that it can seriously be contended that these logos represented an infringement of the copyright in the photographs in the Encyclopaedia. The simple photograph of an object, however carefully lit and angled or focused the photograph may be, and however skilful and careful the photographer may have been, is not really carried through, to any significant extent whatever, into these logos.”

Or as Michalos summarises it, “Where photographs of antiques were copied by tracing the outline of the object and simplifying the object to an outline, there was no infringement as what was original in the original photographs (such as lighting, angle and focussing) were not reproduced.”

So this second case backs up Bauman v Fussell: tracing from a photograph, where that photograph is a faithful reproduction of a 3D object, does not infringe the copyright in the photograph.

Ets-Hokin v Skyy Spirits

This concept is given a helpful name, “thin copyright”, in the US case of Ets-Hokin v Skyy Spirits.

Skyy commissioned photographer Joshua Ets-Hokin to photograph their vodka bottle. They then chose not to use his photos, but rather, went with similar images taken later by other photographers. There was no suggestion that Skyy had physically reproduced Ets-Hokin’s actual photographs. Nonetheless Ets-Hokin sued, claiming that the new photographs were so similar that they amounted to an infringement of copyright. The Court disagreed:

“Though the Ets-Hokin and Skyy photographs are indeed similar, their similarity is inevitable, given the shared concept, or idea, of photographing a Skyy bottle.  When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with only a “thin” copyright, which protects only against virtual identical copying.”

So let us apply this statement to tracing from aerial photography. If we subtract the unoriginal elements – i.e. the actual lie of the land which is being photographed – then the “thin copyright” applies solely to the image itself. This is protected against “virtual identical copying”, but there is no restriction on tracing the unoriginal elements.

Michalos summarises:

“It is submitted that for a non-original photograph of a mundane 3-D object taken “straight-on” which is intended to be an accurate copy of that object, any copyright that subsists is a “thin” copyright which is only infringed by actual reproduction of that image…

“It is the work labour and skill in creating that image which is protected… The ‘thin’ copyright conferred on photographs intended to reproduce 3-D objects should protect only the work labour and skill and not the photograph’s subject.”

Weetman v Baldwin

A fourth case, heard in British Columbia (Canada) in 2001, is not a direct analogy but is nonetheless relevant as the only one to deal explicitly with aerial photography.

Weetman produced a map principally from tracing over aerial photography, but also by adding his own knowledge and using his own specially-written software. Baldwin copied this map – but didn’t realise that Weetman had included an Easter egg (a misspelt lake name).

When Weetman sued, Baldwin claimed in defence that the information was factual and therefore not subject to copyright. Weetman won, with Judge Romilly specifically citing:

“trails, roads and other features detailed with a precision and an accuracy not previously attained by other mapmakers of the region in question, which was facilitated by a particular process pioneered by a mapmaker”

Weetman’s actual tracing work from the aerial photographs, which Michalos calls “interpretation of those sources”, is therefore deemed copyright-worthy  – i.e. the act of deciding “that’s a railway” and “that’s a tree”. (Comparable cases agree, such as Meshwerks v Toyota.) But there is, again, no suggestion that any copyright in the aerial photographs is involved.

(See also this overview.)

Case law – summary

Using two examples from Britain, one from Canada and one from the US, we can see clearly that there is no infringement of copyright in tracing features from a copyrighted aerial photograph. We can close our consideration of case law with this, from the oft-quoted House of Lords decision on Ladbroke v William Hill in 1964:

“Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that ‘there is no copyright’ in some unoriginal part of a whole that is copyright.”

So if an OpenStreetMap contributor were to purchase a printed aerial photograph, trace over it, and then upload the result to OSM as their copyrighted work (under the standard OSM licence), it would not be an infringement of copyright.

But what if, for example, the Google Maps API were used? Yahoo!, of course, has for a long time given permission for OSM users to trace over its imagery. Google’s imagery is better for large parts of the world, and there can be few OSM contributors who haven’t wished that it was available in a similar way.

It is clear from the four cases examined above that there would be no infringement of copyright. Copyright, though, is not everything. Use of Google’s aerial imagery is only by permission of their Terms of Service. Do these terms permit use?

The Google Maps API Terms of Service

The primary document is the Terms of Service for the Google Maps API, the service which would be used to provide the aerial imagery for tracing. (The Google Maps Terms also apply, but 1.4 in the API terms explains that “the Maps APIs Terms will take precedence”.)

In 7.1, Google provides two crucial definitions:

“(b) ‘Content’ means any content provided through the Service (whether created by Google or its third party licensors), including map and terrain data, photographic imagery, traffic data, or any other content.
“(d) ‘Your Content’ means any content that you provide in your Maps API Implementation, including data, images, video, or software. Your Content does not include the Content.”

We must read these definitions in the light of the case law above.

It tells us the ‘Content’ cannot include the lie of the land as depicted in the aerial photography. ‘Content’ is defined as “created by Google or its third party licensors” – i.e. the aerial photography providers. The four cases are unambiguous that the material which we are tracing is not created by Google or its third party licensors; otherwise a copyright would exist in it.

(Compare with the street name and geometry data in Google Maps’ own map tiles, created from TeleAtlas data. Mason v Montgomery Data explains that, even in the US, such data deserves copyright protection for the “mapmaker’s selection of sources, interpretation of those sources, discretion in reconciling inconsistencies among the sources”. Therefore this is indeed “Content… created by Google or its third party licensors”.)

Therefore a section like 7.3b, which explains that “Certain Content is provided under license from third parties… and is subject to copyright and other intellectual property rights”, does not apply to tracing from aerial photography, since this is not an act restricted by copyright.

Similarly, 10.2 forbids you to “copy, translate, modify, create a derivative work of, or publicly display any Content or any part thereof (for example, the following are prohibited: (a) creating server-side modification of map tiles; and (b) stitching multiple static map images together to display a map that is larger than permitted in the Maps APIs Documentation)”. Again, we are not creating a derivative work, modifying, translating or copying the Content by tracing features; we are creating an independent work. The two examples chosen by Google, however, are clearly copyrighted derivatives.

Nor does 10.6 apply. It says that you may not “use the Service in a manner that gives you or any other person access to mass downloads or bulk feeds of any Content, including but not limited to numerical latitude or longitude coordinates, imagery, and visible map data”. Again, this simply isn’t an issue, since tracings are not feeds or downloads of Google-licensed Content.

Other documents

The Terms & Conditions for Google Maps (i.e. not exclusively the API) define Content similarly (section 4): “a variety of content including but not limited to photographic imagery, map and terrain data, business listings, reviews, traffic, and other related information provided by Google, its licensors, and its users”.

The “provided by” here is slightly more all-encompassing than the “created by” in the API ToS. Nonetheless, the case law we have considered makes it clear that it still does not restrict tracing. We do, of course, also know that the API terms would take precedence in the case of a website using the API to help you trace over imagery.

Other restrictions, such as 2b (”you must not copy, translate, modify, or make derivative works of the Content or any part thereof”) and 2e (”mass downloads or bulk feeds of any Content “) are the same as what we have seen in the API terms with no significant changes of wording.

Google also provides a FAQ for the Google Maps API. In it they explain sites on which they don’t permit the API to be used:

“There are some uses of the Google Maps APIs that we just don’t want to see: maps that identify the places to buy illegal drugs in a city, for instance, or any other illegal activity. We also respect people’s privacy, so the Google Maps APIs shouldn’t be used to identify private information about individuals.”

Again, none of these examples could in any way be construed as forbidding tracing from the aerial photography or any similar activity.

Conclusion

We can conclude:

- Case law firmly establishes that tracing from aerial photography is not an infringement of any copyright in that imagery.
- Read in this context, the Terms of Service for the most popular aerial photography API, that provided by Google, do not prohibit such tracing.

With this in mind, we can see why Google appears happy for the high-profile Wikimapia to continue to exist – even though Google is hardly shy in sending take-down notices to sites that they believe contravene their terms of service.

So, should you start tracing from Google aerial imagery, and upload the results to OpenStreetMap? You could – but you shouldn’t. OSM is by its nature very cautious about sources: the point of the whole project is to provide a “clean room” map of the world unencumbered by traditional copyright. You should not endanger such a terrific project just on the say-so of one chap with a blog.

You should, however, take this say-so, and investigate further. Are there other sites or publications, like Wikimapia, which encourage tracing or other means of obtaining factual information from imagery, and which have also been left alone? (I can think of one superb printed map, for example, which acknowledges that “Google Earth and Panoramio are not only invaluable sources, they have practically revolutionised the work of map publishers”.) And can Google or other aerial imagery providers confirm this reading – or otherwise?

It matters. The ability to trace from high-quality satellite imagery will not hurt the providers of this imagery. But it will greatly aid many, many mapping projects, and the applications – from hobbyist to humanitarian – that benefit from the data they create.