Copyright battle over Obama picture

skygod,

That rendering may belong to the artist, but then again it may belong to the photographer. You should hire a lawyer immediately because someone may get it into their heads to actually buy one of those shirts!

tonylong wrote in post #7301469
skygod,

That rendering may belong to the artist, but then again it may belong to the photographer. You should hire a lawyer immediately because someone may get it into their heads to actually buy one of those shirts!

Hey Tony, luckily it's my Avatar- taken by me on my mobile phone! - that was used 'n' abused without my permission as inspiration for the desultory image in post #158; my photo (with a slightly less stupid expression!) taken by me, with my abused avatar digitally stuck on it in post #180; and my incredibly good sense of humour that allows me NOT to take someone as seriously as they clearly take themselves and their opinions on the validity of the current legal system.....and all despite the repeated inferred insults being hurled my way, simply for disagreeing with someone!

skygod44 wrote in post #7301754
Hey Tony, luckily it's my Avatar- taken by me on my mobile phone! - that was used 'n' abused without my permission as inspiration for the desultory image in post #158; my photo (with a slightly less stupid expression!) taken by me, with my abused avatar digitally stuck on it in post #180; and my incredibly good sense of humour that allows me NOT to take someone as seriously as they clearly take themselves and their opinions on the validity of the current legal system.....and all despite the repeated inferred insults being hurled my way, simply for disagreeing with someone!

You should sue yourself and really get the courts thinking how to decide that case and who should win...

skygod44 wrote in post #7298495
But despite it being easy to interpret your image as a bullying tactic

It was more of a tactic of using an image of yours as an image of mine and claiming ownership of the image that began as your image. A little bit of Reductio Ad Absurdum with a dash of Reductio Ad Hominem on my part. A strategy that had no hope.

Glad you're not insulted. I didn't mean it to be mean.

No computer trickery, but no paint brush. I used the Pen tool in Illustrator to trace the image. A technique I suspect Fairey used to lay out the template of his painting.

That's the crux of why I'll never convince you. You see it as "inspiration", I see it as theft of intellectual property.

Sometimes, a photographer just pushes the button. Sometimes a photographer works hard and expends a great deal of energy and money to capture the very photo in their mind. My argument is that either photo (and all in between) are protected with the same rights of ownership.

So Photographer A produces a book of "Spray and Pray" photos and Photographer B produces a book of "Million Dollar Budget" photos. Artist X comes upon both books and makes paintings of every photo and produces his own books without the permission of either photographer.

In your point of view (correct me if I'm wrong), the market will decide who gets the most money for book sales. In my point of view, both photographers should be able to block the publication of Artist X, and sue for both damages and punitive recompense.

I don't believe that people should be able to duplicate key components of another's work and call it their own. Here in the US, the law happens to be on my side. "Derivative" is used because the infringer didn't make photocopies of the other's work, rather they did their own thing while copying the original. It's intellectual theft, pure and simple.

skygod44 wrote in post #7301423
Just a bit of fun....and no, I won't market it or make any money out of it, blah, blah, blah!

Need I say more?

Stop taking yourself so seriously, and think about/discuss this thread without feeling as if we (you) are personally involved in the AP v Fairey case.

The "HOPED" image not really my image to begin with. However, because that's my hand, I'd wonder how the courts would settle this out. Most likely in your favor. All the work I did would be for naught. As it should be.

***************

As for taking things seriously, I actually have a stake in how things turn out. Not in the case itself, but in the implications of the settlement.

Currently, I have a work of art being used as the logo for an international convention. I've given the convention organizers (I'm on the board) permission to use the logo for the convention. The logo has appeared in an international magazine around the globe. If I were to see that work duplicated or derived into another work, I'd be the one trying to stop its unauthorized use. My fault lies in the fact that I did not register the copyright before publication (a mistake made in friendship with the planning board). If the artwork is duplicated, I can only sue for unauthorized use, but no punitive damages can be sought. So in the end, the result of the Fairey case does have some bearing on what happens to my work in the future. Granted, I don't have the same exposure as an AP photographer, but I have something out there that's mine and I'd like to keep it as such.

What would I say to someone who takes my work and finds inspiration in it? I'd say, "Go find your own damned inspiration!"

The work came about as a result of my wanting a specific end product. I went to the New Orleans City Park and shot pictures of trees. I then took the photos and worked them in Illustrator until I was satisfied with the result.

This is my work (minus poster text and beat to death in JPEG to protect the image):

HOSTED PHOTO
please log in to view hosted photos in full size.

BillsBayou wrote in post #7303000
I don't believe that people should be able to duplicate key components of another's work and call it their own. Here in the US, the law happens to be on my side. "Derivative" is used because the infringer didn't make photocopies of the other's work, rather they did their own thing while copying the original. It's intellectual theft, pure and simple.

i suppose architects and engineers are the downtrodden victims of society then. buildings, bridges, monuments.. are often the key component of millions of photos and paintings created for profit every day. they didn't sprout out of the ground randomly. they were painstakingly designed, placed, and constructed with precision and purpose. aesthetics are a major consideration in many structures around the world. what gives you or anyone else the right to profit from someone's hard work and creative thought?

i first noticed this on deviantart where i saw a disclaimer under the architecture section about eiffel tower photos:

"EIFFEL TOWER PHOTOS: There are no restrictions on publishing a picture of the Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid to the SNTE."

why are light displays copyrighted but architecture which is arguably one of the most difficult forms of artistic innovation left open to free use? many widely photographed structures around the world are designed and owned privately, yet it seems as though derivative works from these prominent ideas are practically impossible to stop.

i also am reminded of the comment on how photos of the f-22 at airshows meet heavy resistance from lockheed martin. technically, every car, train, and airplane is the result of creative design. i think it begs the question, what ISN'T derivative work? heck, even seemingly natural vistas like lake powell are man-made and the result of someone else's ideas.

(are all aircraft, rail, and automotive photographers intellectual thieves out to profit from technical designer's creativity?)

BillsBayou wrote in post #7303186
What would I say to someone who takes my work and finds inspiration in it? I'd say, "Go find your own damned inspiration!"

The work came about as a result of my wanting a specific end product. I went to the New Orleans City Park and shot pictures of trees. I then took the photos and worked them in Illustrator until I was satisfied with the result.

parks are the result of city planners and designers. the bonsai bowl is the result of someone's idea to create an aesthetically pleasing bowl. bonsai itself is the result of someone's idea and it just happened to turn into a widely adopted art form. is it just timing then that makes your art acceptable? if you painted the original bonsai plant, would that not be intellectual theft from the artist who first created the concept of bonsai?

this isn't an ad hominem attack or anything, i'm just trying to see if i can illustrate the concept that practically ALL art is derived from someone else's labors. regardless of copyrighted or not, ALL of our work has elements (sometimes major) which are derived from work done by others. a portrait against a brick wall is not a copyrighted idea, but to yell at someone to find their own inspiration is a bit pretentious in my opinion because brick walls in themselves are the fruit of careful planning on design on shape and size, and the concept of simplicity and order in putting a person in front of it is also an idea which many of us recreate yet are not the originator of.

(edit: sorry for the double post. saw the new post after i submitted my last one.)

The F-22 is another sore subject as well. It's image cannnot be published in a non editorial manner unless licensed by LM. They actually took the steps to Trademark and copyright the A/C. This was done because so many companies were copying what is essentially their design and selling it as models and posters, postcards etc.

They have gone after several photographers for breach of TM. AFAIK it has not been tested in court, no photographer has deep enough pockets to fight that battle.

Non commercial uses is OK AFAIK. The problem I think most photographers have with this issue is twofold first there is only ONE client and the is the US GOV'T. so it is technically gov't property for which there are few trademarks or copyrights it was built under gov't contract and with public dollars.

But buildings are exempt from copyright too. The Rock and Roll Hall of Fame tried to CR the buildings shape and prevent photographers from using in for commercial purposes. The the RRHF lost the court battle. As far as the Tower in Paris, it may be due to the fact that there were no laws governing the tower when installed but the lights came later and were protected, but that is just a SWAG...

In my photographic career I have taken legal action 3 times for CR infringement, and won all three before it ever got to court. I protect my copyright in every way possible. That is one reason I do not have a website any longer, - no way to protect my images use by theives.

But get this in one case that I rec'd nearly 8'gs for the infringement the person who stole the shot asked in advance if they could use it for post cards. I said no due to the fact that it was just purchased as an exclusive image for a magazine shoot. They used the shot scanned from the mag and produced 50k worth of post cards and put their name on the shot!!. My lawyer ate their A$$ off. I got the infringement the cost of the image 3x plus the legal fees. Plus they were REQUIRED by me to remove and destroy all cards with that image, even after distribution. The key here - wait for it - was the magazine. It was a legal one targeted at non-profits on how to start and maintain one legally. Many of clients are non-profit childrens hospitals, animal orgs and 501c's based on a particular malady or infliction. I had a slew of attorneys wanted to sue this idiot. Say what you want to belittle an attorney but when you really need one, you want one that is tghe pitbull of his or her area of expertise.

alt4852 wrote in post #7300521
the point about sunsets isn't the sunset itself, it's the idea that someone could hypothetically take your photo of a sunset and use it as inspiration to take their own sunset photo. if they used the "tripod-holes" example from earlier and tried to mimic your sunset photo, should you be looking to hire a lawyer since they're creating their own work while using your photo as a general reference for style? payday!

That's why I brought up the images of the White House Ruin at Canyon de Chelly. A photograph may inspire me to go to the original subject and make my own interpretation. As long as I'm standing in front of the original subject, then it's my interpretation, even if it is very similar to the original. You cannot copyright a style or a concept. If, however, I am working from that original photo, and not from the original subject, then it's a derivative work.

And to respond to other issues: There are three ways to protect intellectual property in the U.S. (I do not know about French law, so the Eiffel Tower issue is safe from my pontification): Copyright, Patent, and Trademark. Each is completely different, with different rules and requirements. A trademark, for example, has to be used commercially (and in the same line of commerce) before it can receive final protection. The TM means that the owner intends to register it, the R in a circle is evidence of that registration. It's not easy and it requires a lot of work. The main point is to prevent confusion in the market, where one person can capitalize on the brand of a competitor. A photograph can probably be trademarked, but it would require a huge effort, and the photograph would have to be unique enough to serve as a logo.

Patents are the hardest of all. One must prove original content, and the paper trail that demonstrates such is critically important. My company won a large infringement case when a competitor copied our patented approach and could not show, in court, their development process. We could, and so we had the evidence of original creation. But it is possible, in theory, to patent a style or a concept, as long as it has sufficient original content.

Copyright protection occurs from the first moment the expression is committed to its medium. (Burdens of proof and the ability to collect punitive damages is based on registration, but the initial protection doesn't require it.) But it's only the expression that is protected, not the subject, the style, or the concept. As long as I go back to the original subject, I can express even the same concept.

Example: There is a popular, if rather goofy, practice among tuba players each Christmas. The Harvey Phillips Foundation owns the trademark on "TubaChristmas", and they protect that trademark vigorously. Does that mean they can prevent anyone from playing Christmas carols using a massed tuba ensemble? No. The music the HPF uses is copyrighted. Does that mean others can make their own arrangements of Christmas carols for massed tuba ensemble? Yes, as long as they can show that they went back to the public-domain originals.

Rick "the source matters" Denney

rdenney wrote in post #7304413
That's why I brought up the images of the White House Ruin at Canyon de Chelly. A photograph may inspire me to go to the original subject and make my own interpretation. As long as I'm standing in front of the original subject, then it's my interpretation, even if it is very similar to the original. You cannot copyright a style or a concept. If, however, I am working from that original photo, and not from the original subject, then it's a derivative work.

yea, i understand and can agree with most of what you're saying. the one bone i have to pick with it is the fact that what you're describing can be pure happenstance. i think most of us would agree to a certain extent that using another photographer's dialed in settings and "tripod-holes" is intellectual theft, but that is somehow more ok just because the imitator is there at the same time instead of going back at a later time.

how does physically being there automatically make it your own interpretation? since photography is a little harder to judge, let's use painting. if you saw a painter painting a vista a certain way, and you set up your easel right next to them and painted the exact same thing.. wouldn't you consider that theft? i don't see how physically being there makes it any less of a theft of ideas if you use their work as a guide but are creating your own work. this is why i think the hope poster shouldn't be written off automatically as being theft because the artist was not looking at obama in person. it is not identical, and the manner in which it is painted is an interpretation in it's own right.

it's argued that the point in all of this is that one work was based on the other without any original source. the artist just added his own spin on the existing work. on this thought line though, what is there to be said about writers and poets like emily dickinson? she wrote volumes about fanciful places and things that she had never seen herself. she never cited or referenced the books or encyclopedias where she derived her ideas on exotic locales on, but she did indeed have to use other people's work to make her own. is she a thief too?

Since it's my 40th birthday today, thought I'd jump back in from the fiery pit of "Anti-Derivative-Law Hell" and see what you boys have been talking about...

cory1848 wrote in post #7302920
You should sue yourself and really get the courts thinking how to decide that case and who should win.

Hmmm, maybe I might.....that would be fun. Except here in Japan, lawyers are NOT all-powerful demi-gods and people don't sue at the slightest opportunity.

BillsBayou wrote in post #7303000
.....Glad you're not insulted. I didn't mean it to be mean.....That's the crux of why I'll never convince you. ......

Insulted? Not really. Didn't mean it to be mean....? Who are you trying to kid? Your act was incredibly unpleasant, insulting and shamefull. Look up the personality type that that behaviour fits into in DSMIV (no, not on wikipeepee) and then "convince" me your act was socialy acceptable!
"Convince" me about inspiration v theft... Err, are you serious? This thread isn't about you or anyone else "convincing" others that their opinion on the AP v Fairey case is right. It's just an OP asking people what they think on a photography forum. That's all.
Why you're trying to convince anyone that your opinion is KING really should be a matter for you to meditate on, in private, with the blinds down, and maybe a strong cognac close to hand.
My own little Reductio ad Hitlerum back at ya.

Now, a comment that encompassed your masterpiece:

alt4852 wrote in post #7303419
parks are the result of city planners and designers. the bonsai bowl is the result of someone's idea to create an aesthetically pleasing bowl. bonsai itself is the result of someone's idea and it just happened to turn into a widely adopted art form.....practically ALL art is derived from someone else's labors....ALL of our work has elements (sometimes major) which are derived from work done by others....., but to yell at someone to find their own inspiration is a bit pretentious in my opinion....

Sorry for chopping out some text, but of course you're right. 100% bang on. We all "copy" for want of a better word, the works of others. Yelling "get yer own ideas" is both naive, self-dillusional and plain "odd". But who, in their right mind would yell such a thing? Nobody I can think of.

alt4852 wrote in post #7303355
i suppose architects and engineers are the downtrodden victims of society then. buildings, bridges, monuments.. are often the key component of millions of photos and paintings created for profit every day.........i think it begs the question, what ISN'T derivative work?.....are all aircraft, rail, and automotive photographers intellectual thieves out to profit from technical designer's creativity?

Again, good points well made. The law on this has already gone too far IMESESESHO (that's "In My Ever So Ever So Ever So Humble Opinion"). If you, we or anyone, as an artist/photographer/ar​chitect/whatever will be blocked/sued/sent to prison without passing Go! and collecting 200 Euro-Yen-Pounds for using something we see for inspiration, the world is going to turn into one ugly place. Laws are needed, of course! But not this one to such a limiting extent.

LBaldwin wrote in post #7303570
.....In my photographic career I have taken legal action 3 times for CR infringement, and won all three before it ever got to court. I protect my copyright in every way possible. That is one reason I do not have a website any longer, - no way to protect my images use by theives.
But get this, in one case.....etc.

Thanks for the info'. I think I'll "copy" you and not repost my old images onto a new website. I've had images "stolen" in the past too, but nothing that I was going to make money out of which is perhaps the basis of why I think AP don't deserve a penny.
AP had "used up" their creativeness on the Obama picture and gotten nowhere. Fairey stepped "up to the plate and hit a home run". He deserves the credit - IN THIS CASE.
In your case, I'm really pleased you won, LB - despite our, err, "differences" earlier in the thread - you were clearly taken advantage of. You'd said "no". Your efforts were stolen. Well done you!

Any more thoughts for the OP anyone? And please...no more personal attacks against POTN members. This isn't dpreview!

skygod44 wrote in post #7306832
My own little Reductio ad Hitlerum back at ya.

Godwin strikes again!

alduin wrote in post #7307062
Godwin strikes again!

I was thinking more "Harry Potter" to be honest!
Go on....think about it....I can wait....
...and while we're waiting, no quips about Sexton either!

Touche, good sir!

Im with the AP.

The few posts Ive read of people talking this fair act, and well I wouldnt mind....

Wait till it actually happens to you, and your attitude will change.