Good news from the federal appellate level!

            Reversing a California District Court Judge, The Ninth U.S. Circuit Court of Appeals recently held, in a 2-1 decision, that digitally altered photographs appearing on the web are copyright protected.

            The case concerned a photograph by Jeffrey Hunter Mendler of the 1991 America's Cup yacht race. The defendant, Winterland Concessions Co., had obtained a license from the photographer to use the photograph on T-shirts in 1992. Three years later, without the photographer's knowledge or consent, Winterland digitally altered the photograph by changing the colors-blues and browns to gray and violet, by flipping the image, and by adding text and graphics. This, obviously, constituted an alteration to the image and the creation of a new one, a derivative use.

            The District Court held that the licensing agreement permitted such alteration but the Appeals Court disagreed.

            This decision, at least for now, resolves the issue of whether digital alteration of images on the web constitutes an infringement of the photographer's copyright under the Copyright Act. Although it may appear self evident that this should be the result, please bear in mind that the result was a 2-1 decision. This means that the District Court Judge and one of the three appellate Judges believed this was not an infringement!

            There will undoubtedly be other cases to test these waters without any certainty of the ultimate outcome. At least, however, photographers have this decision to guide them.

            A word to the wise -- the issue would never have arisen in the first place had the original license agreement specifically prohibited any alteration or change without the photographer's consent.