The Doctrine of First Theft.

Pardon me for a minute while I get serious and ranty.   I promise, it’s all back to “yay, I finished another game!” or “look at the neat thing I bought” next post.

I was browsing around for new wallpaper last night and ran into something that really annoys me – it’s something that, in a play on the “Doctrine of First Sale”, I’ve decided to call “The Doctrine of First Theft.”

It’s the idea that, because you’ve stolen something, it gives you some kind of ownership over it.

In this particular case, it was someone who scanned images from art books, stuck them in front of a background, and then claimed that the result was their creation, and as such you couldn’t take it and put it on your own page.  This is a rationale used quite a bit on fan sites, whether it’s something that doesn’t take any real effort – screen captures, scans, that sort of thing – or whether it’s something that actually takes some creative efforts – wallpapers, fan-subtitles, and so forth, that take a piece of existing art and create a derivative work.
My innate reaction to the concept is “To heck with that, you stole it in the first place, so you don’t have any control over what’s done with it.”

But, it strikes me that I might be being somewhat unfair, so I wanted to go through my thought process on the matter.

This is a photograph of a cel I own.

Shampoo Cel Photo

This is a physical object and bit of artwork.  I own this; I can sell it to someone else or cut it into pieces, put it into a collage with other things, and sell the collage.

This is a scan of the same cel:

Shampoo Cel Scan

I don’t own this. If I were to put this image on a T-shirt and try to sell it, Shogakukan could legally stop me from doing it.

In fact, by putting it up on the web, I’ve infringed on their copyright. They could ask me to take it down. They could ask me in all sorts of nasty legal ways, and they’d be in the right.  I rather hope they don’t, but I can’t complain if they do.

Now, then – if you were to take this image and put it on your own web page, what recourse do I have?  I don’t have any ownership of the image, so it’s not like I could come to you and say “Hey! You stole my picture! Take it down!” – I have no right to distribute it in the first place, it’s not my picture.

I suppose I could go to Shogakukan and say to them “Hey, this guy has an illegal image on his web page, make him take it down”

But that would be kind of silly since I put it up on the web in the first place.

That’s not the whole issue, though.  Let’s continue.

Here’s a photo from my last vacation to Japan.

Senso-ji temple in Asakusa, Japan

I’m pretty sure I own this.  I’m within my rights to put it up on this web site, and if I wanted to publish a calendar of “temples in Japan”, I could probably use the photo.  I’m not entirely sure how the presence of bystanders in the photo affects that, but I think I’m still in good shape legally.

By taking the photograph, I automatically get copyright protection. This means that if you copied the photo and put it up on YOUR web site, I could legally say “Hey, take that down!”

Not that I would, because I’m not a jerk and I don’t think my vacation photos are all that special, but in theory I own this image.

So let’s combine this with the image I don’t own:

Shampoo Cel / Senso-ji composite

Let’s take a moment and admire my amazing Microsoft paint skills.

OK, let’s continue.

I’m pretty sure I don’t own this.  I own the background, sure, but by adding an image that I don’t have any rights to, I think I’ve created a composite image that I don’t have any rights to.  So, again, Shogakukan could say “Hey, knock it off!” and I’d have to comply.

But I’m also pretty sure that, again, I can’t tell anyone else what to do with it. I can’t say “I stole it first!  It’s mine!”

Anyone out there want to chip in with their two cents?

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