Hello! I found this interesting article regarding a copy copywriting another copy!
Humans of Bombay – one of the many unauthorized spin-offs of Humans of New York – is suing People of India for copyright infringement. Humans of Bombay is claiming that their photo format (posting a photo of an individual with an excerpt of their conversation as a caption) – one they themselves copied from the original Humans of New York – is being copied by People of India.
This whole debacle was brought to my attention when the creator of Humans of New York, Brandon, went on Twitter to call out Humans of Bombay for claiming copyright infringement on something they copied from him. Brandon followed his tweet with an Instagram post claiming why he has never claimed copyright infringement on all of the copycat “Humans of…” accounts. Brandon believes that being able to share these stories is more important than making money, and thus has never been bothered by other “Humans of …” accounts.
I am interested to see how this court case will turn out and the implications it may have on existing and future “Humans of…” accounts.
To learn more, you can follow the link: https://www.washingtonpost.com/world/2023/09/26/humans-of-bombay-lawsuit-explained/
Communications Law
Would one of the arguments against copyright protection be that there are only limited ways to post photos of individuals with captions, so Humans of New York would only be an “idea” over which monopoly shouldn’t be granted? (Similar to drawing of a hand holding a pencil completing a cross in a box to instruct voters who could not read in the Kenrick & Co. v. Lawrence & Co. case) I wonder if remedies could be sought through trademark infringement (or passing off) instead.
Is a genre copyrightable? Is a format the same as a genre?
Jon
Hello Professor,
Great questions! Not sure if I have the answers to them, but I will try to answer them anyway!
In terms of copyrighting a genre, a genre could fit the fixation and originality requirements, as discussed in class. A genre could be both fixed and original. For example, in the case of Humans of New York, posting photo essays on Instagram is tangible and arguably original. However, I think because copyrighting a genre would limit other creators’ abilities to create their own work and the potential of copyrighting a genre becoming a wasp nest, I think courts would be reluctant to allow people to copyright a genre. Thus, while I think a genre is technically copyrightable, I do not it is in practical terms.
As for the second question, I would argue that a genre is not the same thing as format, but is definitely similar. For instance, in CBC v SODRAC, the translating of the tape from one format to another involved just straight up copying one piece of work multiple times for different purposes. With genres, I do not think it would be fair to classify every work under a genre as a copy of whatever is deemed the first of that genre. I do not think people create work under a specific genre with the intention of essentially remaking whatever work came before them. Nevertheless, I do think this happens anyway. For instance, in 2012-2014 there was an influx of dystopian young adult novels that hit the market, which all sort of followed the same formula: ordinary person lives in a failing society where everyone is categorized based on some sort of personality or physical trait, ordinary person someone gets sucked into the middle of said dystopian society’s political strife and destroys the political structure, and falls in love with someone. Prima facie, yes — most dystopian books could be defined as a format. However, each book still has its differences that make them unique in some way. So, although it could be argued that a genre is the same as format, based on what we have learned about format so far in CBC v SODRAC, I would argue no. While I see the similarities, I do not think the “copying” that occurs within a format is concrete enough to warrant the comparison.
Hi Jessie,
The thing that makes this case interesting — and why the creator of Humans of New York even stepped in to make a statement — is that the creator of Humans of Bombay actually alleged to come up with the idea and the expression of the idea herself. She claimed in a past interview that she came up with the idea of having an Instagram account dedicated to posting photo essays of people in a specific geographic location on her own, long after Humans of New York had established itself as the “first” of its kind. So, at first Humans of Bombay claimed that People of India were copying their “unique storytelling format and publishing identical content without consent, to which People of India responded by claiming that Humans of Bombay copied their content from Humans of New York. At this point, Humans of New York spoke up and basically confirmed that Humans of Bombay was a copycat. Additionally, it did not help that Humans of New York and Humans of Bombay had the same Instagram biography. Then, Humans of Bombay backtracked and argued that People of India copyrighted the way they created their content, such as how they posted their photos and conducted their interviews. Humans of Bombay stated that the purpose of their injunction was to make sure that People of India were not stealing their “original” photos. The cases concluded with both parties agreeing not to copy each other’s pictures, with no one getting damages. So yes, you are correct — there are limited ways to post photos with individuals and establish a monopoly over an idea.
As for remedies, I do not think Humans of Bombay would have much of a basis for seeking damages through passing off because of the lack of deception involved. People of India never claimed to be a stand-in for Humans of Bombay, especially because People of India interview people from all over India, whereas Humans of Bombay largely remains within the bounds of Bombay, as is apparent from their respective Instagram handles. Thus, I do not think this case would meet the requirements for a successful passing-off action for Humans of Bombay to seek damages.
Link the update: https://www.livemint.com/news/india/delhi-hc-bars-humans-of-bombay-people-of-india-from-copying-each-others-work-11697026839526.html
Neha! This was a fascinating read. Thank you.