From Last Week’s Episode…

If you’ve been reading the comments to my last two postings:  Can you really copyright an Ultra Fractal parameter file? and;  Is it too late to patent your fractals?; you will have probably come to the conclusion that Ultrafractalists see no essential difference between a parameter file and the resulting image file that it creates.

Samuel Monnier thinks so and he’s a veteran Ultra Fractal user and very familiar with the way the program works, especially how it creates imagery using various techniques, many of them pioneered by himself.  Sam said:

There is absolutely no conceptual difference between a parameter set and a jpg image. Both contain data, that a certain algorithm can use to display an image on your screen. Displaying a parameter file just requires more computations from the computer, yet there isn’t any difference in essence.

Jock Cooper, another veteran Ultra Fractal user and pioneer in pushing the parameters of the program agreed with Sam’s categorization of parameter files as well as disagreeing that Ultra Fractal parameter files (UPRs) are patentable processes and said,

As the comments have pointed out, the UPR is a alternate form of the image…

And as far as the UPR being/defining a process, actually it doesn’t. No process is described by the UPR–those processes are described in the formula files. The UPR defines which processes to use (by naming them) and what numeric inputs to use.

Lessons Learned

So how has this expert advice changed my view on the copyright status of Ultra Fractal parameter files?  A UPR is probably something that can be copyrighted because it’s really no different than a computer script.  But even with the roaring search power of Google at my fingertips I couldn’t find a single legal case of copyright infringement of a computer script or even someone –anyone– on the internet who would say you can copyright a computer script.  But isn’t a computer script a subcategory of computer software?  And computer software can be copyrighted… so there, I guess the question is answered and done with.

Besides, isn’t a parameter file more of a creative work than even the image it renders?  What do fractal artists really do but adjust and explore fractal parameters?  When one works with Ultra Fractal they work with parameters; the image comes later, just like a print artist creates a printing plate and then only afterwards –after all the real work has been done– creates the print, the thing we call the image.  The fractal parameter file is analogous to a printing plate –a fractal printing plate.

No, that’s not right.  It’s a little different.  Let me put it in very cerebral, philosophical language: The parameter file is to a fractal image what the printmaker’s creative choices are to the printed image.  Ultra Fractal provides all the mechanical support: the expert engraver; inking; and pressing of the plate.  (Fractal artists never get dirty or lose fingers.) The artist’s creative “authorship” is contained entirely in its choices of: what formula; what rendering method; what coordinates to zoom to; what boxes to tick off; what numbers to key in; and of course, as a multi-layered program, what layers to include; how to merge them; and as you can see, choosing whatever can be chosen.

The Answers to Everything

A parameter file is a whole bunch of answers to a whole bunch of questions.  Fractal images have a whole lot of variables; parameter files define those variables.  I think this is what Jock Cooper was getting at when he said, “The UPR defines which processes to use (by naming them) and what numeric inputs to use.”

Anyhow, if you’re an Ultrafractalist you know all this already.  That’s why you may find all this copyright stuff somewhat pointless and of no practical importance.  But copyright is all about practical matters –all about what are you going to do?

For instance, speaking of Ultra Fractal parameter files, what are you going to do when someone makes something with your copyrighted parameters?  I don’t mean copies your parameters verbatim, I mean they make another image based on your copyrighted parameters.  I believe “tweaking” is the popular word.  Is it infringement when someone does this?

z_n² + c + mustache + beard

One small step for U-P-R; One giant leap for J-P-G

You see, as my co-contributor, Terry Wright suggested in his comment, image files (or sound files) react very differently to “tweaking” and it’s this difference –the way derivative works are made– that is the real practical difference between image files and parameter files with respect to copyright.  Un-tweaked or simply copied verbatim, parameter files and image files have, as Samuel Monnier said, “no conceptual difference”. (Assuming, as Paul N. Lee added, that they’re used with “the same version/release/mod-level of that application… each time, and the formulas and other criteria (transforms, gradients, etc.) not changing from the original coding”.)  If you copy a parameter file without any alteration, then copyright infringement is a very simple matter to decide.  Of course, the resulting, identical image would make the matter pretty easy to judge, too.

But what if someone changes something in your parameter file just a little bit? What if I take a “1” and make it a “10” and then start selling prints of the image online?  Are you going to send me a harsh email or see a lawyer about it?  Like I said, what are you going “to do”?  Copyright is a practical thing.  If you don’t care about infringement and protecting the commercial value of your work then there’s no reason to care about copyright or bother with it; that’s all copyright is good for.  That’s what I was getting at when I said the copyright notices in parameter files on the UF mailing list were “a little weird”.  What possible infringement scenario could they be hoping to protect their work from?

As every fractal artist who has ever inputed julia coordinates or any kind of number into the dialog box of a fractal program knows, tiny parameter differences can produce huge graphical effects.  Of course, sometimes tiny parameter changes produce tiny graphical differences and sometimes huge parameter changes do nothing at all to the image.  Derivative works are a violation of copyright unless you get permission to use the copyrighted material from the original artist.  You’re copying their work without making substantial, transformative changes to it.  Therefore, that portion of your new work that is their work, is protected by the original artist’s copyright and can’t be copyrighted by you because it isn’t your work.  Derivative works incorporate the copyrighted work of others and create works with dual, or even multiple copyright owners because there are dual, or even multiple –authors.

Unwritten laws of Fractaldom

This is the nightmare scenario that Gumbycat (alias Linda Allison) is hinting at in her online article, “When is it yours?“.  Well, maybe not exactly a “nightmare” or “doomsday” scenario, but if fellow UFers start to feel like you’re exploiting their work by using their parameter files and they see a pretty straightforward and simple legal recourse, i.e. an infringement lawsuit, then I’d say that’s a pretty grim environment to be caught up in.

Nobody wants headaches like that and in the interest of online happiness over the years certain unwritten rules have arisen regarding the proper use of parameter files that many have come to assume (mistakenly, I believe) are supported by copyright law.  Linda Allison (in case you don’t know) is a long-time Ultra Fractal user, so I think what she writes on this matter is worth reading even if it was posted quite a few years ago.  She also explains it quite well.

There are “UPR” files – parameter files. These files hold the data that is the final, sum total of the image you have created. Sometimes we post “UPR” files to the UF Mailing List. That doesn’t mean those images aren’t copyrighted! They are. Nevertheless, we may* expect them to be tweaked (altered slightly or greatly) or picked apart as a learning tool by other List subscribers. Sometimes the tweaks are posted back on the list. When the original images are altered slightly by another List subscriber, the resulting image cannot be claimed by that second person as his or her own image. When they are greatly altered to the extent that in all aspects the new image looks totally unlike the first image, the second person may claim that image as his or hers. When you are unsure whether you can claim the image as your own, contact the creator of the original UPR and work it out with her/him.

Yes, even way back then (I suspect long before that “2005” that appears on the bottom of the web page) the thorny issue of derivative works was anticipated and precisely because of what caused me to start asking these questions myself: posting parameter files to the UF mailing list.  Note that whether the tweak results in a new work or merely a derivative work is a matter judged by what the image looks like.  That makes perfect sense of course; how else would you compare the differences between two parameter files?  What would my suggested substitution of “10” for “1” result in if you can’t see the result?

Courtrooms and complex technology

You see the sort of confusion I’m suggesting will accompany any accusation of copyright infringement of a parameter file?  All a defendant has to do is show a judge or jury how many variables there are in a parameter file and how some of them can be changed from “1” to “10” and result in no changes at all and how others can be changed the same way and result in a total transformation of the original image.  After that a judge or jury (that’s grasped the concept) will most likely conclude that the only kind of derivative work that can really be recognized and argued for is the alteration of images, not the alteration of parameter files.

But that’s assuming you’ve gotten past the first hurdle in any lawsuit: convincing a lawyer that your case is worth taking to court in the first place.  I’m assuming in all these fractal art copyright scenarios that there’s money to be gained in taking legal action because that’s what seems to drive infringement lawsuits.  But currently there probably isn’t any money or at least not enough to attract any interest in a lawsuit.  But even if you were super-rich and wanted to sue someone for the sheer joy of revenge (another frequent, but not nearly as common motive) you’d have to bring the lawyer up to speed with all the intricacies of fractal parameters.  I can just imagine the conversation: “The imaginary values are real things –real numbers– they’re just not the real values, those are different.  You can’t have decimal places in an integer!  I told you already; infinity is the largest number theoretically possible: we represent it with a zero.

It’s in this context of a courtroom or a lawyer’s office and not in the context of an online fractal art discussion that I’m saying an accusation of copyright infringement of a parameter file isn’t going to go anywhere or present any practical legal reaction.  But if the infringement involves an image, then it becomes a simple matter of applying decades of legal precedence to what is just another case of copyright infringement of a visual work.  Viewed from that aspect –derivative works– parameter files and images files are categorically different.  Verbatim duplication of a parameter file, say, in an online repository or reposting without the author’s permission, would probably be easy to deal with too.  And in the event that one published the parameter file for a very popular and commercially valuable work (when there is one) the damages might be far greater than those involved with simply copying an image because with access to the actual parameters, now many people would be able to reproduce the image at any resolution and make derivative works without infringing the artist’s actual image.  Actually, the copies made from the parameter file could be better!

Will any of this ever matter?

It’s hard to say what the future of fractal art is going to be.  But if the creative use of graphical fractal renderings ever acquires real commercial value then these things we’re just discussing as hobbyists might take on a much more serious form and nature.  If you think your fractal art has or ever will have commercial value, then you ought to take a more professional approach to copyright and not just adopt the so-called community standards of the online fractal art folks.  They aren’t the ones who will be judging your copyright infringement case or representing you in court.