Copyright Question / Questionable copyright?

[Dug]

A friend found this image for sale in a gallery catalogue and instantly recognized it as being from a recent popular fashion magazine





All this is assuming the artist has not asked permission of the photographer.

To my mind it is an open and shut case, copyright has been breached and the photographer could, if he or she wished, sue for not only compensation but also damages to the tune of about $250,000. Not a good prospect.

I have also seen quite a few similar image rip offs including one hung in the Archibald prize a few years ago.

I have on occasion contacted painters involved in this kind of copying and asked if they have copyright permission to reproduce the image.

The usual reply is "Oh, I change the media so I am not breaching copyright"

to this the reply is "Oh, then if I was to photograph one of your paintings and sell it as my art that will be OK with you because the media is changed?

You can guess the replies I get to that suggestion

I do know of a photographer who has his photos converted into paintings in another country The person who converts the painting is paid for the work and he signs the end result. He is a little concerned about the ethics of this but there is a long history of artists commisioning works to be created in their name. Sort of like and architect designing a building.

cheers doug

[TonyH]

Dug,

I reckon he'd have a hard time proving copyright breach on this one. There would be at least 30% difference between the 2 in my opinion.

It could be argued he has used it for inspiration, but it isn't a direct copy.

In photographic terms if we're using the copyright situation a photographer couldn't argue that they have the copyright for a pose or a photo location.

I know it is bad but I feel it just wouldn't stack up....

[big pix]

this is not a copyright infringment, as the image has been changed enough by the artist, not to be a direct copy, not my rules, but our out dated copyright rules........

[Dug]

How much do I have to change in order to claim copyright in someone else's work?
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.

If the original image is recognizable then copyright has been breeched.

there is no "percentage' of change allowed by the law

[macka]

I don't know the ins and outs of the applicable law, but just a thought... isn't this comparable to someone doing a cover of a song? How does the law work in those circumstances? Do people covering songs need permission to do so?

[Dug]

Ask George Harrison! He was taken through the courts and fined a huge amount for a supposed breach of copyright. My Guy / My Sweet Lord I think.

Now everyone rips everything of everyone else.

It is a strange world.

[Dug]

From the Australian copyright council

( I hope they don't do me for breach of copyright for reproducing their article )

When is copyright infringed?
It is generally an infringement of copyright to deal with a photograph in any of the ways exclusively reserved to
the copyright owner without the copyright owner’s permission, unless copyright has expired. Using part of a
photograph in one of these ways may also infringe copyright, if that part is important or distinctive, even if it is
a relatively small proportion of the photograph.
Copyright may also be infringed by “authorising” infringement, by importing articles containing copyright
material, and by selling infringing articles.
The Copyright Act sets out some defences, or exceptions to infringement, which allow some uses of copyright
material without permission—for example by reviewers and students. There are also special provisions for
copying by libraries, educational institutions and government bodies. In some cases, certain procedures must be
followed, and in some cases, fees must be paid. For further information on these special provisions, see our
information sheets Fair Dealing; Research or study; Libraries; Education institutions; and Government.
Note that, VISCOPY licences photographs (http://viscopy.me.com.au) and you can also get licences to use
photographs from photo libraries (for example, the Fairfax photo library).

[leek]

I know which version I prefer - - - - - the photo...

With respect Doug, your article refers to reproducing a small part of a photo (i.e. a crop)... I don't think it covers a situation such as this where a theme was copied...

[Dug]

John I think you will find it does.

I have attended the copyright council information meetings for artists and I have asked this specific question. The reply was, it does not matter what percentage is changed or what medium the image is copied into.

If it is recognizable as a copy of a copyright image, then copyright has been breeched and fines apply.

I think anyone would recognize that an important and distinctive area of this photograph has been copied directly into the painting.

[redline]

well if i photograph a baseball batter from spot A. then someone eles comes down does the exact same thing with the next batter. has he breached my copyright?

[Dug]

No, only if he makes a copy of your photograph.

Not if he takes a similar photograph at the same time, unless you have created the subject matter specifically to photograph.

[gstark]

Ask George Harrison! He was taken through the courts and fined a huge amount for a supposed breach of copyright. My Guy / My Sweet Lord I think.

He's So Fine and My Sweet Lord.

He wasn't fined; he was sued.


And if you do get an answer directly from him .....


Talking more seriously for a moment, I don't see this as being a breach of copyright either. It's certainly seems to be derivative though, but tell me, do you know which of those two images was the original?

Perhaps what you're saying is the copy came first?

[Matt. K]

How do you know the photographer didn't pinch the idea from the artist?

[Dug]

How do you know the photographer didn't pinch the idea from the artist?

Providence, the painting is dated well after the magazine was published.
[/quote]

[Matt. K]

Dug
OK. I would still assert that there are enough differences to make copyright impossible to prove. Furthermore, if someone used one of my images as a basis for their painting I tend to think I might be flattered. That's providing it wasn't a blatent exact rippoff!

[wendellt]

it should also be noted that in fashion photography there are only a certain amount of poses and techniques that work. There are so many re-literations of the same theme and poses out there it could just be mere co-incidence
that both these works look the same

i am sure if you looked hard enough there is a photo that looks almost the same as another photo out there

fashion photography is highly derrivative

but i can se where your coming from Dug
the resemblance is very close

[gstark]

What if .....

The model in the second image saw the first and said to the artist who made the second, this how I want to pose ???

[daniel_r]

Dug, I can see where you're coming from, but I don't think it's a breach.

I'm not employed in the legal profession, but have a bit of exposure to commerical law through my degree - I've rummaged around and found my old texts covering Commerical Law and Intellectual Property.

The following is a summary of my interpretation from a good concepts/summary book:
Commerica Law in Principal 2001, H.Ryan, A.Gibson et al
Copyright: Copyright Act 1968 Cth

* Copyright is the right to duplicate, copy or reproduce a particular form of expression and to prevent others from doing so without the authorisation from the owner of the asserted copyright.

For copyright to be asserted, the following must be met:

* The subject matter must be either a work (literary, artistic musical, dramatical) and subject matter other than works (cinematograph films, sound recordings, radio/tv broadcasts, published editions)

* the work/subject is stored in a way that can be reproduced

* the original work originates from the author's skill, labour or judgement. No registration required, copyright protection is normally for the life of the author + 50 years.

* the copyright is on the expression as opposed to the idea

From the companion book with far more detail
Australian Commercial Law, 23rd Edition 2001, Clive Turner

There's a section on p.853 "Copyright does not protect ideas as such".

A basic principle of copyright law is that does not protect ideas as such but only the particular form of expression in which they are embodied

A precedent case is also pretty clear on it

In general, there is no copyright in the central idea or theme of a story or play, however original it may be; copyright subsists in the combination of situations, events and scenes which constitute a particular working out or expression of the idea or theme. If these are totally different, the taking of the idea or theme does not constitute an infringement of copyright"

I know I've imitated (not copied) the works of acknowledged artists to get a better understanding of how light and composition work.

Say for example I head down to Coogee and snap off a few photos of a strategically placed lifesaver - am I infringing on Rex Dupain's copyright
What about a bronzed male torso on Bondi - Max Dupain's copyright?

As much as it sucks, artistic works aren't afforded the same protection of a patent. If you never "do" your own individual work and ride off everyone elses ideas for ever, what's the value in what you are doing?

You only get out what you put in
I get a buzz off the idea "hey, I came up with that idea, it worked out great, and it's mine".

[Dug]

Dug, I can see where you're coming from, but I don't think it's a breach.

I'm not employed in the legal profession, but have a bit of exposure to commerical law through my degree - I've rummaged around and found my old texts covering Commerical Law and Intellectual Property.

The following is a summary of my interpretation from a good concepts/summary book:
Commerica Law in Principal 2001, H.Ryan, A.Gibson et al
Copyright: Copyright Act 1968 Cth

* Copyright is the right to duplicate, copy or reproduce a particular form of expression and to prevent others from doing so without the authorisation from the owner of the asserted copyright.

For copyright to be asserted, the following must be met:

* The subject matter must be either a work (literary, artistic musical, dramatical) and subject matter other than works (cinematograph films, sound recordings, radio/tv broadcasts, published editions)

* the work/subject is stored in a way that can be reproduced

* the original work originates from the author's skill, labour or judgement. No registration required, copyright protection is normally for the life of the author + 50 years.

* the copyright is on the expression as opposed to the idea

From the companion book with far more detail
Australian Commercial Law, 23rd Edition 2001, Clive Turner

There's a section on p.853 "Copyright does not protect ideas as such".

A basic principle of copyright law is that does not protect ideas as such but only the particular form of expression in which they are embodied

A precedent case is also pretty clear on it

In general, there is no copyright in the central idea or theme of a story or play, however original it may be; copyright subsists in the combination of situations, events and scenes which constitute a particular working out or expression of the idea or theme. If these are totally different, the taking of the idea or theme does not constitute an infringement of copyright"

I know I've imitated (not copied) the works of acknowledged artists to get a better understanding of how light and composition work.

Say for example I head down to Coogee and snap off a few photos of a strategically placed lifesaver - am I infringing on Rex Dupain's copyright
What about a bronzed male torso on Bondi - Max Dupain's copyright?

As much as it sucks, artistic works aren't afforded the same protection of a patent. If you never "do" your own individual work and ride off everyone elses ideas for ever, what's the value in what you are doing?

You only get out what you put in
I get a buzz off the idea "hey, I came up with that idea, it worked out great, and it's mine".

If you make a living riding off someone else's work you are breaking the law and should be punished and this painting was for sale for a good price well in the thousands of dollars range.

There is a lot of difference between following a theme and copying an artwork. Several cases of this have been successfully prosecuted both here and in the USA.

If you do not want to enforce your rights than that is entirely up to you but for people who make a living from what they photograph and create, as I do, copyright is an important fact and should be respected.


I have not done a law degree either, I am just going on the information provided by the Australian Copyright Council. They would seem to me to be reasonably expert in this area.

[Dug]

 PS I have in the past had a winning painting, a direct copy of an Anne Geddies photograph, removed from a public gallery for just this reason.

The artist was also required to return the prize money.

[Glen]

Doug, not being pedantic as I respect your intent with this discussion but you said "to the tune of $250k". It would be more accurate to say up to $250k as it is unlikely that loss of income, reputation or punitive damages would equal $250k. The courts are notoriously fickle in awarding amounts and to quote some well known cases when Andrew Ettinghausen sued ACP for publishing a photo which showed his penis he got $100k, at the same time a worker who lost his hand got $40k and just recently Larry Knight, the Beaconsfield miner who lost his life, family was compensated to the tune of $176 or $186k (the last wasn't a court award but you get the idea).

[rmp]

There's two issues here.

Firstly, are any laws being broken. In this case that's a grey area and the rules can be found here:

http://www.copyright.org.au/

Personally, I'd say it's a copyright infringement as it's very clearly based on another person's work. But you could argue differently and lawyers would be happy to do so for the usual hourly rate.

The second issue isn't so grey, and that's moral obligations. Sure, assume the artist isn't *legally obliged* to ask permission to use the photograph as a base. But it would be, I think, professional to *ask* permission anyway.

There's plenty of occasions where photographers are within their rights to take photographs, but a little courtesy and permission goes a long way towards making life easier all round, now and in the future.

[thaddeus]

dug: I agree with your general line of thought and think that if it was done without permission, there is a strong case to argue that there has been breach of copyright. From memory, the test is something like whether there is a reproduction of an important part of the composition. It seems to me that test is satisfied here. I could look up the exact test if you wish. I think as a fellow photographer it would be appropriate for you to draw this to the attention of the original photographer.

daniel_r: That is a reasonable summary of the basics. The issue here is derivative works, which aren't likely to be covered in a general commercial law textbook. A copyright law textbook would probably have the info, though.

Matt K. What is the basis for your assertion that "there are enough differences to make copyright impossible to prove"?

leek: For a minute there, I thought you were going to say that it's legal in Russia!

[Dug]

to quote some well known cases when Andrew Ettinghausen sued ACP for publishing a photo which showed his penis he got $100k,

I loved the quote from the photographers mum in this case.

" I always knew one day my son would be famous, but i didn't think it would be for something he did with a footballers penis"

[Dug]

I think as a fellow photographer it would be appropriate for you to draw this to the attention of the original photographer.

I have attempted to but have not had any success as yet.

[Finch]

Ask George Harrison! He was taken through the courts and fined a huge amount for a supposed breach of copyright. My Guy / My Sweet Lord I think.

Dug,

George Harrison's "My Sweet Lord" , which was a number one hit worldwide and sold millions was a supposed rip-off of the Chiffon's "He's So Fine" (you were pretty close with which song he supposedly copied ). Even though there were short pieces similar in George's song, he was made to pay millions in compensation.

Copyright infringement cases are often decided on the judges opinion of the case and precedent the has been set before in a court of law.

Cheers

Michael

[digitor]

..... From memory, the test is something like whether there is a reproduction of an important part of the composition. It seems to me that test is satisfied here.

Thaddeus,

Your memory would seem to be quite good - the following is from the copyright.org site:

Do I need permission to make a painting or drawing based on a photograph?
Generally, if you use a photograph as a source of information (for example, for information about the colours or
proportions of an animal), you will not need permission. However, if you reproduce an important part of the
photographer’s composition, you may need permission.

Cheers

[Matt. K]

thaddeus
Human expression is not copyrightable. A smile, a sneer, a tear, standing in a certain way, with your hands on your hips, does not prevent others from using these expressions or poses. A sports photograph of a footballer leaping for the ball does not prevent others from photographing a footballer leaping for the ball. There are enough differences in the 2 images to rule out a breach of copyright. The poses may be very similar but the backgrounds are very different (count the number). I would like to see any silk on the floorboards make a case for these 2 images. The Defence rests.

[TonyH]

Here's a thought...... what if the photographer and the artist both hired the same model and she provided her own props which were the same.......

Now that would set the cat amongst the pidgeons....

Tony

[thaddeus]

Matt. K,

Generally in legal matters we start with the law, regulation, precendent or other rule and then apply it to the case. So perhaps we should start there. I've given you my recollection of the legal test (one which appears to be borne out by the Copyright Council website). What do you think the legal test is and do you have any references for it?

[whiz]

When I first saw this post, My girlfriend had just arrived. She's a PhD Fine arts student at ANU.
We've had a few discussions about this sort of thing and they do all sorts of legal and ethics stuff at the Uni at a reasonably high level.

First thing she said was that it was a rather horrible painting, but then again she's an art snob and I give her heaps about that all the time.
Our joint opinion was that he could probably get away with it as it is not directly recognisable APART FROM THE RESEMBLENCE OF THE GIRL.
ie, cover the girl and the recognition of the image as still being the same is now missing.

If the image was virtually indistinguishable from the photographs other than brush strokes, he'd have a case to answer, but what if he'd hired a model to pose similarly to the one in the photo and then painted that?

You can't copyright a pose, or a look.

In terms of compensation, you're now comparing a photo and a painting.
I doubt that the photographer is going to lose any money because someone painted a picture that resembled one of his works.

Copyright was designed to protect things that were easily reproduceable to protect creative works.

If you make exact reproductions, the lines are pretty well drawn.
If you draw inspiration from another type of work, the costs of trying to protect that via prosecution and defence lawyers are going to be crippling.

If the painter was to back down under threat of law, the photographer would win without any real costs.
If he chose to stand up in court, I think that it would be very costly for both parties and the artist would most likely win.

You all may believe that it's an open and shut case, but I can think of a few excuses that the artist might use.


It's not as if it's a shot that has taken permissions from councils, riggers, lighting speciallists, animal trainers and a fluff girl to achieve.

Don't think that I believe for a moment that it wasn't inspired by the photo.
I just don't think it would be an easy thing to prove beyond doubt.
Keep in mind that lawyers love this kind of thing when they need a sunroof for their porshe.

[Matt. K]

thaddeus
Certainly....thaddeus versus Matt. K

I'm not refuting that what you say is correct....I have no legal training,
but seriously.....are you suggesting that thoses two images are so similar that a case could be made for a breach of copyright? How many points of similarity are required before the courts can empty your wallet? I see a similar body stance although the hand is in a different position. I see a similar hairdo. Everything else is different. If 20 artisits paint the same landscape which one is the copyright owner?

[thaddeus]

Matt. K, yes, that is what I am suggesting based on the test I articulated above. I do not recall any test based on a specific number of similarities or differences.

whiz, I drive a Lotus, not a Porsche. Porsches are soooooo 80's!

[gstark]

Thaddeus,

There's a challenge for you: Fit a sunroof into the Lotus.

[Matt. K]

thaddeus
I drive an old Volvo. Volvos are sooooooooo....er...forget it!

[gstark]

80's, Matt.

1780's, that is.

[daniel_r]

80's, Matt.

whoah, that is slow. 0-100 in 80 seconds!

[gstark]

80's, Matt.

whoah, that is slow. 0-100 in 80 seconds!

What do you expect for a block of flats?

[Dug]

When is copyright infringed?
It is generally an infringement of copyright to deal with a photograph in any of the ways exclusively reserved to
the copyright owner without the copyright owner’s permission, unless copyright has expired. Using part of a
photograph in one of these ways may also infringe copyright, if that part is important or distinctive, even if it is
a relatively small proportion of the photograph.
Copyright may also be infringed by “authorising” infringement, by importing articles containing copyright
material, and by selling infringing articles.
The Copyright Act sets out some defences, or exceptions to infringement, which allow some uses of copyright
material without permission—for example by reviewers and students. There are also special provisions for
copying by libraries, educational institutions and government bodies. In some cases, certain procedures must be
followed, and in some cases, fees must be paid. For further information on these special provisions, see our
information sheets Fair Dealing; Research or study; Libraries; Education institutions; and Government.
Note that, VISCOPY licences photographs (http://viscopy.me.com.au) and you can also get licences to use
photographs from photo libraries (for example, the Fairfax photo library).







Are you seriously saying that this section of the photograph was not copied from the photo? Because if it has been copied then copyright has been breached.

[Sheila Smart]

On the subject of what is and what not is copyright: Awhile back I was contacted by a company in the UK who wanted to use part of an image in my aboriginality of Sydney gallery at PBase. The whole image was one of my, now deceased, aboriginal didge players playing this very large didgeridoo. I quoted a price and they declined which is fair enough. As a I work for a large law firm, I did start to think if I was infringing the copyright of the artwork of the didgeridoo. The client wanted just an area of the didge which was the most colourful, not the whole image. So I put it to one of the IP partners where I work. I am not going to copy the two pages answer I got (lawyers never know how to keep it brief!) but this is what he said

Your query believe it or not is a very fascinating little legal conundrum, Sheila. I got one of our Summer Clerks to do a bit of research and her memo is attached. As I've been travelling I only had a chance to chat to her about it this afternoon, which is why the long delay in responding to you.

The gist of it is that, unless the didgeridoo is only an incidental part of a larger scene that you photographed, then taking a photo of it is actually a breach of copyright in the artistic work on the didgeridoo. Once it becomes the main element of the photo, you can't sell the photo without permission from the owner of the artistic work on the didgeridoo!

Aren't you glad you asked!

Here is the link to the image in question http://www.pbase.com/sheila/image/17937129

The client only wanted a smallish crop of the didge. It was to be used for Aussie wine bottles marketed in the UK.

He also gave me these links to what is copyright regarding paintings

The photographer is the owner of copyright and the painting is an infringing reproduction - no question:
http://scaleplus.law.gov.au/html/pastea ... 000480.htm

The painting may also infringe the photographer's moral rights:
http://scaleplus.law.gov.au/html/pastea ... 005130.htm

Cheers
Sheila

[rmp]

I've run into a similar problem and came to the same conclusion. Sheila's case is even more clear-cut than the painting as the photograph is clearly only of the didge, and nothing else.

Here's an interesting one.

If you take a photograph of a person with a beautiful tattoo on their face and then resell that photograph, whose copyright(s) are you infringing?