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02/05/2009 10:45:56 PM · #26 |
In your opinion eamurdock...what is the minimum I could do to this picture that would allow me to sell it many times over and not have to compensate you?
I'm not being a funny man...I just see everyday on DPC people squawking about someone stealing, someone claiming or someone using 'my' picuture on a website without permission...etc...
....I just want to know where the real boundries are.
Originally posted by eamurdock:
Originally posted by kenskid:
Ok good...so I can take this picture by Cutter..print it...put it on the side of my computer, draw it back into photoshop...(NO ONE would know if I just layered on in PS for "guidance")....paint it purple with some green... sell hundreds of them and Cutter is out in the cold with NO rights?
Originally posted by eamurdock:
Originally posted by US Supreme Court in Campbell v. Acuff-Rose Music:
the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. |
I think there's little question that this piece is "transformative" and I have read a number of analyzes by people better informed than I that don't give AP a chance. If I looked at a picture of Obama while I painted one, that would clearly be a transformative work. Nor does the existence of the poster in any way diminish the value of the original work - on the contrary, it has increased it considerably. So there's no tort question.
That said, I think it'd be nice to give the photographer some credit. Nice, but in no way any kind of legal requirement. As far as AP goes I have zero sympathy; they're just hoping for a settlement check, and one to which they have no legal (nor in my mind moral) claim. |
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Well... if the final work is "transformative", a question which is not established by the number of colors you use or how many copies you sell... yes. From a legal standpoint, yes.
It's an interesting question when one talks about, say, Richard Prince (both from a legal and artistic viewpoint, IMO) but this case is pretty cut and dry.
Also - images of public figures and events are different. For instance: Time Magazine owns the Zapruder film of Kennedy's assassination. They have tried and failed, however, to prevent the publishing of stills from the film. |
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02/05/2009 10:59:23 PM · #27 |
| Its free reign if the artist uses a picture and paints it in their own version of it such as this. Same as music artists that sample other peoples work. Its a muddy grey area that is no line drawn in the sand, of what is copywrite when its used in other artwork. It wasn't a direct copy, it was inspired by. |
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02/05/2009 11:05:43 PM · #28 |
Cool...so I can take any pic I want off of DPC...color it, change it a little...sell it on coffee mugs, shirts etc and not have to worry?
Originally posted by MQuinn:
Its free reign if the artist uses a picture and paints it in their own version of it such as this. Same as music artists that sample other peoples work. Its a muddy grey area that is no line drawn in the sand, of what is copywrite when its used in other artwork. It wasn't a direct copy, it was inspired by. |
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02/05/2009 11:12:28 PM · #29 |
Originally posted by kenskid:
Cool...so I can take any pic I want off of DPC...color it, change it a little...sell it on coffee mugs, shirts etc and not have to worry?
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If you did it another medium such as painting it, pencil, etc, using it as inspired in your own artwork, not a problem. Coloring and changing it a little is not what I was talking about, and your smart enough to know that.. |
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02/05/2009 11:37:57 PM · #30 |
Originally posted by kenskid:
Cool...so I can take any pic I want off of DPC...color it, change it a little...sell it on coffee mugs, shirts etc and not have to worry?
Originally posted by MQuinn:
Its free reign if the artist uses a picture and paints it in their own version of it such as this. Same as music artists that sample other peoples work. Its a muddy grey area that is no line drawn in the sand, of what is copywrite when its used in other artwork. It wasn't a direct copy, it was inspired by. |
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If it is transformative. This isn't just semantics, this is an established legal term.
From Stanford University:
"1. The Transformative Factor: The Purpose and Character of Your Use
In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?"
These aren't my words, so using my work as an example doesn't change anything. If you used my work in a way that (a) provided fundamentally new meaning (b) did not erode the financial value of my work to me, then yes, you'd not have to worry. Or maybe I'd sue you, but I'd lose. Also note that the nature of the copywrited work matters; an image of a public figure in a public place is less protected than a portrait. See the Zapruder film example.
What Fairey did was transformative. While there was a source image, his resulting work was fundamentally different in it's message. He added additional content through his work. Just coloring my picture pink would not do that.
The transformative factor of the fair use doctrine is not governed by how much you change something, what colors you change, etc (see Richard Prince, also currently getting sued) but by how you alter the meaning. Prince would argue that by co-opting images he is altering the meaning, but in my (naive) opinion I would expect that he'll lose. |
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02/05/2009 11:47:02 PM · #31 |
Sounds like a bunch of legal BS. From all that you posted from Stanford and the Supreme Court, it seems that there is NO line. It seems like you can take it, change it, and sell it....if the original creator sues you, you go to court and have your version interpeted by a judge or 12 people on a jury.
I'd say it's worth a try.
What if I took a pic from DPC. Changed it to my liking. Sold items with it...like mugs, throw rugs etc...made say... $7,894. Then the person that I took the picture from found out and asked for half of the money? If they took me to court and it was found to be not changed enough would I have to give up the 8 grand?
Originally posted by eamurdock:
Originally posted by kenskid:
Cool...so I can take any pic I want off of DPC...color it, change it a little...sell it on coffee mugs, shirts etc and not have to worry?
Originally posted by MQuinn:
Its free reign if the artist uses a picture and paints it in their own version of it such as this. Same as music artists that sample other peoples work. Its a muddy grey area that is no line drawn in the sand, of what is copywrite when its used in other artwork. It wasn't a direct copy, it was inspired by. |
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If it is transformative. This isn't just semantics, this is an established legal term.
From Stanford University:
"1. The Transformative Factor: The Purpose and Character of Your Use
In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?"
These aren't my words, so using my work as an example doesn't change anything. If you used my work in a way that (a) provided fundamentally new meaning (b) did not erode the financial value of my work to me, then yes, you'd not have to worry. Or maybe I'd sue you, but I'd lose. Also note that the nature of the copywrited work matters; an image of a public figure in a public place is less protected than a portrait. See the Zapruder film example.
What Fairey did was transformative. While there was a source image, his resulting work was fundamentally different in it's message. He added additional content through his work. Just coloring my picture pink would not do that.
The transformative factor of the fair use doctrine is not governed by how much you change something, what colors you change, etc (see Richard Prince, also currently getting sued) but by how you alter the meaning. Prince would argue that by co-opting images he is altering the meaning, but in my (naive) opinion I would expect that he'll lose. |
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02/05/2009 11:59:16 PM · #32 |
Originally posted by kenskid:
I'd say it's worth a try.
What if I took a pic from DPC. Changed it to my liking. Sold items with it...like mugs, throw rugs etc...made say... $7,894. Then the person that I took the picture from found out and asked for half of the money? If they took me to court and it was found to be not changed enough would I have to give up the 8 grand?
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In a legal battle, your cost alone in retaining an attorney, court fees and such defending yourself 8k looks babycakes in the long run. I think if you did copy someones work such as that and profited, and they asked for half and they had a good reason behind it... It would be WAY cheaper to give them that half:) |
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02/06/2009 12:17:52 AM · #33 |
Originally posted by kenskid:
Sounds like a bunch of legal BS. From all that you posted from Stanford and the Supreme Court, it seems that there is NO line. It seems like you can take it, change it, and sell it....if the original creator sues you, you go to court and have your version interpeted by a judge or 12 people on a jury.
I'd say it's worth a try.
What if I took a pic from DPC. Changed it to my liking. Sold items with it...like mugs, throw rugs etc...made say... $7,894. Then the person that I took the picture from found out and asked for half of the money? If they took me to court and it was found to be not changed enough would I have to give up the 8 grand?
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'The Campbell v. Acuff-Rose Court, while it embraces the transformative use principle, does not establish transformative use as a new bright-line test. The main precedental value of Acuff-Rose is the re-emphasis on case-by-case decision making. Judicial application of the fair-use factors "is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis."'
John V. Martin, Copyright: Current Issues and Laws. Nova Publishers, 2002
So yeah, you're right. There's no bright line. There's deliberately no bright line. The whole point is to balance the rights of the copyright holder with the larger public good provided by allowing people to build on the work of others; copyright protection provides an incentive to create work while limits on copyright allow that work to play a role in a large public discourse. This is the same reason that patents are not help in perpetuity. There is simply no bright line that could be drawn that wouldn't either be unfair to creators (i.e. do whatever you want) or be stultifying to trasformative work (i.e. Ebert and Roeper would run the risk of being sued for reviewing movies). The fair use doctrine exists for a reason.
That said, "no bright line" is not the same as "no precedents at all"; and your example of slightly altering the work and selling it on mugs is clearly on the side that would not be protected, as I think you understand.
Edit to add:
Carolyn Wright offers a different opinion.
Message edited by author 2009-02-06 00:59:03. |
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02/06/2009 01:37:50 AM · #34 |
| At this point do you guys actually think kenskid is listening to you? |
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02/06/2009 02:54:24 AM · #35 |
| The problem I see - is that it is Obama - a well known figure who has probably been photographed a number of times ( a trillion at a guess). Although the artists has aknowleged the photographer I'm sure a court would argue that it was a common aspect of a well photographed public figure. Not morally right but probably wouldn't hold up in a court of law. |
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02/06/2009 04:12:43 AM · #36 |
| I honestly am behind the artist on this particular instance. While I too would be upset if someone used one of my pictures and created somethgin that was more popular I think that artists should be able to create new forms of art based on photographs. If not we wouldn't be allowed to do a single piece of popart of Monroe or even use Andy Warhol's style as it would all be copyrighting style. The painting in my opinion is almost 90% different then the original. The only thing that would be similar would be if you cut the head out and took a picture of both against a bright light they would have the same silhouette. I do believe each case should be based on a case by case basis as its being dealt in this manner I just think in that particular case the artist should win. We all can make what if this or what if that, what if a person has photographic memory and sees a photo and 2 years later does a paintign and can't get the image out of his head and paints it but adds a differetn style to it is that copyright if he didn't even look back at the photo as reference? Just let the court do its thing and post opinions on the results :) |
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02/06/2009 07:57:43 AM · #37 |
What? I am listening and discussing. This topic is perfect for DPC. Many of you have had work taken and even altered and complained. That is why I posted the original.
I really want to know how someone would have to change an image, even one from DPC in order to profit from it without fear of "paying up" in the end.
There have been many times that I have looked a at photo and thought, "I could sell that on a shirt". I thought it was out of the question to even think that thought ! When I saw the article I posted in my OP, I was suprised.
So to say I'm not listening is not fair.
Originally posted by DrAchoo:
At this point do you guys actually think kenskid is listening to you? |
Message edited by author 2009-02-06 08:12:42. |
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02/06/2009 08:40:57 AM · #38 |
Would I be mad, yeh! but only because I didn't think of it or because I suck as a painter and couldn't do it. I don't think the artist owes AP anything though because it's a completely different art. Maybe to say hey I used their photo but as for the money, NO. They didn't do anything to deserve money. I know it's illegal to photograph others artwork but what about sketch artists who use photographs of fruit as a guide for their sketches and then sell them? People know right off that it's illegal to photograph and video record other artwork but views change when it's the other way around.
I do have question though. Is it mandatory for painters or sketch artists to have a model release? If someone sold images of me then that would be something I would be mad about. |
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02/06/2009 08:43:17 AM · #39 |
I see a lot of talk about making money off the painting. In the article, he says he didn't get any of the money made off the work. Even when it was used on the cover of a book, he told them to make a donation to someone other than him. This is what makes me curious about the AP motives here. I am guessing they are going for full licensing of the image so they have to be paid if anyone makes a copy of the other guy's painting or sells in any way a likeness of the image. I don't think it's gonna hold up in court, if they go that far.
ETA: Model release is not required because he is a public figure.
Message edited by author 2009-02-06 08:44:09. |
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02/06/2009 08:56:16 AM · #40 |
But what about us nobody's? LOL
Originally posted by TCGuru:
ETA: Model release is not required because he is a public figure. |
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02/06/2009 09:23:18 AM · #41 |
I thought I saw where he was selling signed copies....I'm sure somewhere in there he is profiting from this piece of art.
Originally posted by TCGuru:
I see a lot of talk about making money off the painting. In the article, he says he didn't get any of the money made off the work. Even when it was used on the cover of a book, he told them to make a donation to someone other than him. This is what makes me curious about the AP motives here. I am guessing they are going for full licensing of the image so they have to be paid if anyone makes a copy of the other guy's painting or sells in any way a likeness of the image. I don't think it's gonna hold up in court, if they go that far.
ETA: Model release is not required because he is a public figure. |
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02/06/2009 09:25:43 AM · #42 |
| Would anyone humor me and take one of their best images on DPC and alter it in a way that they feel would make it "legal" for someone other than the photographer to sell. Or sell and give profits to charity. |
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02/06/2009 10:22:14 AM · #43 |
Originally posted by kenskid:
Would anyone humor me and take one of their best images on DPC and alter it in a way that they feel would make it "legal" for someone other than the photographer to sell. Or sell and give profits to charity. |
This is why people think you're not listening, friend; it is missing the point of what has evolved from the discussion. There *is* no hard-and-fast line to be drawn, what *we* think in here is irrelevant, it is an issue that the courts need to decide. We may have opinions on what *should* or *should not* be fair use, but noted experts on the subject are divided down the middle on how to evaluate fair use in as it applies to photographic originals.
Draw too strict a line and Andy Warhol's work becomes illegal. Make the line too fuzzy and abuse-of-copyright becomes epic (if it isn't already). There are those who say (and that actually have a rational argument, IMO) that photographs should *not* be copyrightable... Put that one in our collective pipe and smoke it, folks :-)
R.
Message edited by author 2009-02-06 10:22:55.
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02/06/2009 10:58:45 AM · #44 |
What if the original photographer - owner of the photo, did a little work in Photoshop and produced a similar result, started rolling them out in T-shirts, posters, mugs, ect. Do you now think the artist has the right to call foul?
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02/06/2009 11:22:01 AM · #45 |
Originally posted by alans_world:
What if the original photographer - owner of the photo, did a little work in Photoshop and produced a similar result, started rolling them out in T-shirts, posters, mugs, ect. Do you now think the artist has the right to call foul? |
My guess, and it's only a guess, is yes - if the original claim of fair use were deemed legit. Because that would mean, in essence, that the artist has created a substantially different piece, one that has "new expression, meaning, or message" to borrow from Acuff-Rose again. So recreating the same thing from the same source material would supersede the intent of the transformative piece.
An easier to understand concept of "transformative use" is the idea of parody or criticism. Thus when, say, Bag News Notes scrawls all over a wire photo by way of interpreting it's meaning they're transforming the source work into something new, something with substantial originality, that does not supersede the original work. That's protected. Would it be legit for the copyright holder of the original piece to offer substantially the same criticism and to market it as original work? No, not from my understanding.
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02/06/2009 12:07:06 PM · #46 |
Then how can it be considered fair use, if there is a way for anyone to remove even in a small way, the photographs owners the right to present their work.
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02/06/2009 12:54:44 PM · #47 |
Originally posted by alans_world:
Then how can it be considered fair use, if there is a way for anyone to remove even in a small way, the photographs owners the right to present their work. |
The photograph's owner still has the right to present their work. The new work represents a substantially new piece of creative output, and the photograph's owner does not have the right to present that, as that additional new meaning is not their creative work.
For the same reason that paramount pictures cannot release a review of one of their movies and claim it's their intellectual property.
Message edited by author 2009-02-06 12:55:39. |
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02/06/2009 01:05:49 PM · #48 |
I'm getting tired of the not listening comment.
Read what I posted...friend:
I said ""alter it in a way that THEY FEEL would make it legal for someone other than the photographer to sell". I didn't say, "alter in it a way that you think a 12 person jury would approve".
So even though there is no hard and fast line as you state...my above comment has nothing to do with a generally accepted rule...I asked the photographer to show me what THEY think would be ok.
I'm still listening.
Originally posted by Bear_Music:
Originally posted by kenskid:
Would anyone humor me and take one of their best images on DPC and alter it in a way that they feel would make it "legal" for someone other than the photographer to sell. Or sell and give profits to charity. |
This is why people think you're not listening, friend; it is missing the point of what has evolved from the discussion. There *is* no hard-and-fast line to be drawn, what *we* think in here is irrelevant, it is an issue that the courts need to decide. We may have opinions on what *should* or *should not* be fair use, but noted experts on the subject are divided down the middle on how to evaluate fair use in as it applies to photographic originals.
Draw too strict a line and Andy Warhol's work becomes illegal. Make the line too fuzzy and abuse-of-copyright becomes epic (if it isn't already). There are those who say (and that actually have a rational argument, IMO) that photographs should *not* be copyrightable... Put that one in our collective pipe and smoke it, folks :-)
R. |
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02/06/2009 01:07:10 PM · #49 |
I didn't even think of that possibility ! You are very astute and must have been "listening" !
Originally posted by alans_world:
What if the original photographer - owner of the photo, did a little work in Photoshop and produced a similar result, started rolling them out in T-shirts, posters, mugs, ect. Do you now think the artist has the right to call foul? |
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02/06/2009 01:24:59 PM · #50 |
Originally posted by kenskid:
I'm getting tired of the not listening comment.
Read what I posted...friend:
I said ""alter it in a way that THEY FEEL would make it legal for someone other than the photographer to sell". I didn't say, "alter in it a way that you think a 12 person jury would approve".
So even though there is no hard and fast line as you state...my above comment has nothing to do with a generally accepted rule...I asked the photographer to show me what THEY think would be ok.
I'm still listening.
Originally posted by Bear_Music:
Originally posted by kenskid:
Would anyone humor me and take one of their best images on DPC and alter it in a way that they feel would make it "legal" for someone other than the photographer to sell. Or sell and give profits to charity. |
This is why people think you're not listening, friend; it is missing the point of what has evolved from the discussion. There *is* no hard-and-fast line to be drawn, what *we* think in here is irrelevant, it is an issue that the courts need to decide. We may have opinions on what *should* or *should not* be fair use, but noted experts on the subject are divided down the middle on how to evaluate fair use in as it applies to photographic originals.
Draw too strict a line and Andy Warhol's work becomes illegal. Make the line too fuzzy and abuse-of-copyright becomes epic (if it isn't already). There are those who say (and that actually have a rational argument, IMO) that photographs should *not* be copyrightable... Put that one in our collective pipe and smoke it, folks :-)
R. |
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Look, you have every right to ask that question, and every right to keep coming back to it over and over again. I have no quarrel with that, truthfully.
I was just pointing out why some people are saying you're "not listening", and trying to do it politely as possible, since you seem to somewhat resent the accusation. Note that I'm NOT saying you're not listening, because to me you obviously are. No, what I'm saying is that the question you keep coming back to is irrelevant to the logical thrust of the discussion, and when you return to it over and over again even though nobody's willing to follow up on it thus far, then it seems to some people you're just not listening in the overall context of the thread.
I was using the word "friend" kindly, not sarcastically; I have no beef with you, and never have had.
Peace, R.
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