AMAZON’S WHITE PATENT
by Alexandra Salazar

Much to critical chagrin, Amazon was awarded a patent for what has commonly been simplified as “photographs with subjects against a white background.” In actuality, the patent granted to Amazon on March 18, 2014 is for a studio setup method to produce images featuring a seamless, shadow-less white background without digital retouching to extract the object or erase unwanted artifacts. To be sure, this is an an advantage for Amazon’s online shopping empire: whatever item of clothing, whatever small or large object, it can be well-presented for sale with a minimum of post-processing. But what are the implications of patenting a technique that furious photographers mark as basic?

Patents are intellectual property protection for new inventions and technology, not merely ideas. Theoretically, it is not possible to patent a common technique or concept; Amazon’s own patent for one-click shopping has been heavily challenged. A technology must be “nonobvious” and “novel” to receive a patent. Artists and photographers have been taking photographs against white fields potentially since the invention of the medium itself, a petition with over 40,000 signatures on watchdog.net claims that Amazon’s “exercise in ego” is not only not a notable new approach to a basic execution but potentially threatening to photographers, “We don’t know if Amazon is about to start sending demand letters to photo studies, or if it just wanted to be able to say that a photography 101 trick that been used for decades is something it thought up.”

After Time’s declaration of “Sorry, Wannabe Models: Amazon now Owns the Patent for ‘Photography against a White Background,”and the original reporting from DIYPhotography.net, articles appeared assuring incensed readers that the controversy was unwarranted. Mashable reassures that photographers shouldn’t be too upset; an interview with Dough Manchee, Professor of Advertising Photography at the Rochester Institute of Technology assures, “Amazon can’t patent shooting on a white background because it didn’t invent that technique,” he said. “The patent is for a specific way to shoot, and that is why the photo community is both amused and confused by this: it’s just not enforceable.”

If “amused and confused” is the way to describe the photography community’s reaction, amusement and confusion can manifest with surprising vitriol. Cnet’s interview with David Hobby, professional photographer and 1988 and founder of Strobist captures personal experience taking hundreds of similar white-backed images and a sense of dismay.

“We did every single shot on a blow-away light,” recounted Hobby. “It gave us a visual style and consistency, and we could shoot wide range of subjects. But even as a kid right out of college in 1988 I didn’t think this was new…There is no defending it on any level.”

But there was, enough to grant a patent. Arstechnica explains it, referring to a previous patent case of Hear-Wear hearing aids and pronged plugs:

“The result in Hear-Wear explains the result in the Studio Arrangement patent application. In both cases, the inventive idea, embodied in the independent claim, was shown to be old and well-known by a prior art reference. And in both cases, a seemingly trivial add-on feature in a dependent claim ended up being the feature that tipped the balance from obvious to nonobvious—a multi-pronged plug in one, and a distance ratio in the other. Because in both cases, that trivial feature was so ordinary that no one would have taken the time to describe it in a printed publication, but without such a publication, according to the Federal Circuit’s rules, obviousness cannot be proved.”

Hobby’s anecdote of not even realizing the technique was particular enough to be exclusive supports this idea: that using a stand of a similar color and washing out the background with light was so widespread and basic, that there was no or few actual instances of evidence to prove Amazon’s very particular setup of the common technique was obvious. The whole concept was too obvious, beyond being worthy of a printed or expert mention.

This brings a new question into place: what is an un-patentable “idea” in this case? Is an idea only provably obvious or extant if it has documentation, or can it exist in practical tradition? And is documenting a specific invocation of a common idea for the first time really a new technological development?

While the general concept of a seamless white background seems challenging to restrict and the patent difficult to enforce, this exploitation of law and intellectual property rights raises questions for artists and craftsmen alike. Is it possible to then file a patent on a piece of media or art’s procedure rather than its finished product, so long as the process has not yet been documented?  Is the creator’s craft an invention or technology, where the creator’s product media or art?

It is these unresolved and potentially problematic gaps in the law that become more poignant for artists, photographers, amateur models, and other creators than the possibility that Amazon will descend on them for producing stock images in their studios, or if Amazon preemptively patented the technique to prevent others from doing the same. Before US patent review, process, not product, is progress: even if that process has had decades of unwritten precedent.