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Archive 2008 · copyright and derivative works
  
 
dmward
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p.1 #1 · copyright and derivative works


There is thread in this forum that addresses people using another photographer's image as the basis for a "derivative work".

The position taken by the derivative work producer was that they had changed the original work and thus had not violated the copyright.

Artists and museums are very careful about this; a museum is using a photo-image of an artist friend's to illustrate an essay in a catalog about another artist. The original art is owned by a museum, the curator at the museum doing the catalog has asked permission from the museum that owns the work, and also from the artist. I asked my friend and he reminded me that as the artist, he holds the copyright to the work, even though it has been sold one or more times.

Here is the pertinent section from the US copyright code:

"§ 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

It seems clear that, when deriving work from copyrighted material one must first seek permission from the copyright holder, then derive the work in whatever way they choose. Remembering that they hold a copyright for the derived work, not the original underlying work.

I am not an attorney and am making these observations as a concerned FM participant and amateur photographer.

My objective is to help the forum participant better understand what the copyright code is protecting and how we can be sure to stay within its bounds while sharing our work on the forum without concern that it will be used inappropriately.

Regards,
David



Edited on Feb 16, 2008 at 12:25 PM
Feb 16, 2008 at 12:24 PM
rhyder
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p.1 #2 · copyright and derivative works


The above is true. I would also suggest that someone should reread an fully understand the "fair use" statutes...

i.e."for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research"...This would not cover using someones work as part of your own.

If the offended party has registered thier work, the are not only entitled to be recompensed for the use of the work itself, they are entitled to punitive damages as well. "Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law."

BTW....the word is "copyright" not "copywrite"....and there is no word as "legistics".
Feb 16, 2008 at 01:41 PM
dmward
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p.1 #3 · copyright and derivative works


Another item that should also be considered: the privacy rights of the model or subject in an original as well as the derived work.

I came across several derived images where the subject is a sports figure pursuing their sport in a public forum. In this case the subject i.e. football player or golfer, has no expectation of privacy and a model release is not required for the photographer (copyright holder) to sell or otherwise benefit from the photo. On the other hand, most photographs of people on this forum are private individuals that do have an expectation of privacy, even though the photo has been placed on a website or forum thread, and a model release is a reasonable save guard. The derived work, presuming that it contains a reasonable likeness of the person in the original photo would also probably need to be covered by a model release -- the only source of would be the copyright holder of the underlying image.

My intent in putting this forward on the FM forum is to suggest that as photographers sharing our private or professional work here or by reference to our websites we have an expectation that fellow forum members and guests will recognize our rights and those of our subjects not in a public venue.

Bottom line: How hard is it to ask?

Regards,
David
Feb 16, 2008 at 03:38 PM
OutsideShooter
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p.1 #4 · copyright and derivative works


In many forums I have participated in Derivative works are not loosely regarded. Artists or photographers, museums or labs, advertising agencies or agents, are careful when this occurs as licensing and character are at risk. I agree: Ask first. Then respect the decision.
Feb 16, 2008 at 09:42 PM
Arka
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p.1 #5 · copyright and derivative works


Rule of thumb: Ask the right holder every time. You probably won't understand the law that likely won't protect you in the event of infringement, so why not just do the right thing and ask?

The statements made here do not even begin to approach the complexity of the statute, and its interpretation by federal courts. Very few lay persons, and many judges, can't draw bright lines on these issues.

While not an attorney, I am a law student who will be doing some IP (Intellectual Property) litigation over the summer. Having just completed the copyright survey, I can tell you that derivative works and fair use are among the most complex and elusive concepts in copyright law, with hundreds, if not thousands, of pages of case law devoted to when either principle applies. If you are interested in delving a bit deeper into the material, I would recommend reading the following;

17 U.S.C. § 101 Definitions for Derivative Works.
17 U.S.C. § 106 (Exclusive rights conferred by copyright).
17 U.S.C § 107 Fair use, including the 4 factor test used when the ordinary categories don't really encompass the facts at issue.

The seminal Supreme Court case on the matter of fair use is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

However, to spare people the grief reading through some of the more confounding bodies of U.S. statutory and case law, I would simply state the following general rules (which, as a disclaimer, are not coming from a practicing attorney):

If an ordinary person can see that copying occurred, and perceives that copying to be substantial, there is likely infringement.

If the derivation is of a type the author of the original would traditionally either control or license, the specter of infringement looms ever closer.

It is always better to ask before using someone else's work as a base for your own. Attribution of modified, manipulated, or other distorted work is not a substitute for getting permission beforehand.

A number of people (you know who you are) have engaged in what I would consider to be outright copyright infringement; those same people developed some pretty absurd defenses for their conduct on a thread that has since been locked. Other threads displaying obvious instances of derivative works infringement have also been removed by the derivative "authors." If there really is doctrinal confusion on these matters, the best rule is to always ask the original author. Err on the side of caution.

As an artist myself, I admit puzzlement how an artist can take pride in work not entirely his or her own. On the fine art forum I frequent, no one would dream of generating derivative works without asking the original author, yet on a "photo illustration and digital art" forum, where the tensions surrounding these issues are often at their highest, some artists persist in baldly stealing the work of others and asserting ludicrous defenses like 'fair use' or 'free speech.' Fair use must, at bottom, be fair; freedom of expression is not carte blanche to misappropriate others' expression.

Arka C.

Edited on Feb 17, 2008 at 01:17 AM
Feb 17, 2008 at 01:10 AM
RodBarker
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p.1 #6 · copyright and derivative works


The original picture taker was not known to ask permission from , did you not see that part in the response , my reply was because he came out swinging a bat where there was nothing sinister about what happened at all , and to your ludicrous excuses remark , they were not excuses at all , just a pointing to the very grey area of copyright that better lawyers than you fight over daily , some big cases have been won in court on the very issues you say are ludicrous , Im sure Tiger Woods and Rick Rush would like to hear your interpretations as it seems Tigers lawers know less than you do on these issues .

The original pictures were shown openly as being used and was not hidden in any way , no claim of ownership was made of the source material , my only claim was to my manipulation of the shown 5 source photos , some of you people use the term stealing and thief very freely ,,,, from behind a keyboard I suppose it becomes easy .

" As an artist myself, I admit puzzlement how an artist can take pride in work not entirely his or her own. On the fine art forum I frequent, no one would dream of generating derivative works without asking the original author, yet on a "photo illustration and digital art" forum, where the tensions surrounding these issues are often at their highest, some artists persist in baldly stealing the work of others and asserting ludicrous defenses like 'fair use' or 'free speech.' Fair use must, at bottom, be fair; freedom of expression is not carte blanche to misappropriate others' expression."

would you care to name your some artists or point to the works your alluring too that persist in baldly stealing the work of others ?

Rod

PS , I see on your website you are a photographer , for some reason when you mentioned that you were an artist frequenting a fine art forum I assumed a painter or sculptor or the like , I was disappointed that your digital art gallery has no images for viewing .





Edited on Feb 17, 2008 at 05:50 AM
Feb 17, 2008 at 03:30 AM
Arka
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p.1 #7 · copyright and derivative works


Rod,

I'm not going to be dragged into a pissing contest with you; rest assured I am a painter and digital illustrator, and the fact that the work isn't on the web for you to see hardly makes that fact less true. And if you're curious about the alternative forum I visit, it's the "it's finally finished" board at www.conceptart.org.

Either way, the thread here is not about who paints what, or who makes what claims to ownership. The thread is about what constitutes unlawful copying, pure and simple. That you do or don't assert ownership over the things you copy, or imply transparency in your use of those images, has no bearing on potential liability. This, along with your reliance on ETW Corp. v. Jireh Pub., Inc. 332 F.3d 915 (6th Cir. 2003) (where Rush wasn't even sued for copyright infringement) indicate your fundamental misunderstanding of U.S. copyright law.

Your attempt to shelter your activities in the alleged gray area purportedly demonstrated by ETW Corp. v. Jireh Pub., Inc. 332 F.3d 915 is a great example of why it's better to just ask a right holder's permission before using someone else's work. The holding of that case does not control in any hypothetical case your work might be involved in, as it isn't even an action in copyright. The issues there was (a) whether Tiger's (and other golfers') trademarks were infringed, and whether the Rush's work was protected speech insofar as it depicted a newsworthy event (the Masters tournament). Such an event was deserving of artistic and media attention. That Tiger was a famous participant in a historic, newsworthy event blunted his attempt to use his trademark and right of publicity offensively against Rush's act of depicting that event in a painting. Tiger wouldn't even have a copyright claim, since he doesn't own the copyright on his poses while playing golf, or upon the images captured while he is playing in a tournament, which is why his lawyers didn't file one. Why do you think you can go to many sporting events, take pictures of the players, and not be vulnerable to copyright actions filed by the players you photograph? Playing sports is not, generally, a copyrightable activity.

I want to reiterate how your completely facile attempt to characterize a case not dealing in copyright as a defense against copyright infringement demonstrates the point; this area of law is complex enough that it makes a lot more sense to do the right thing and ask for permission.

Better lawyers than me (I am not a lawyer yet, but many who teach at my university are) have seen your work, and would have no problem declaring it as infringement to your face. Nor would I, so don't presume you understand the mettle of those you speak to over the internet just because they are willing to tell it like it is behind a keyboard. If you sought my counsel in person, I'd tell you what you are doing is probably infringement against the rights of an author, and that the proper recourse is to seek the author's or right holders' permission. The sad thing is, you could avoid a lot of rancor by just asking, as photographers and other media artists are among the most giving of people.

Arka C.

>

Edited by lordarka on Feb 18, 2008 at 02:35 AM GMT


Edited on Feb 17, 2008 at 01:35 PM
Feb 17, 2008 at 01:09 PM
Arka
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p.1 #8 · copyright and derivative works


RodBarker wrote:
would you care to name your some artists or point to the works your alluring too that persist in baldly stealing the work of others ?


In the interest of keeping this thread alive, and not locked up, I will refrain from naming in public artists who I think are doing this. I would point to a thread or two, but those threads have been since deleted.

Arka C.
Feb 17, 2008 at 01:32 PM
RodBarker
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p.1 #9 · copyright and derivative works


Now best we get this straight right out of the box , I have posted many images on this board and we are dealing with one ! ,,,,99.9% of what I have posted were my commissioned portraits where I took the photos , a few others have been stock photos where I have bought the discs one or two were celebrities with one of those wanting a painting .

As far as a pissing contest nobody asked for one and from what i can see you have nothing to enter , you made the comment that you were an artist , I said I assumed you ment painter or sculptor and was keen to see your work which I could not find , it was an an exercise in interest nothing was ment by it , I have seen that you criticise others work on the board and never offer help and I was keen to see your critiera for that critique , thats all ,,,, hmmm how you derive a pissing contest out of that seems to me you are a bit fragile in the area of showing your art .

Once again you allude to the terms excuse and now facile attempt , nobody is making an excuse can you not get that through your head ,,, areas of copyright and the controversy within have been stated thats all , your conclusion that there mention is being used as an excuse is feeble and points more to your baffle people with book worm quotes , I guess its ok that you mention cases that have nothing to do with the actual circumstances that you are carefully pussy footing around , best we keep our eyes on the ball at hand .

In some areas of law we have when a person is charged with something instances of 1st 2nd and 3rd degrees of the charge because of individual circumstances and not all things are equal degrees of a charge , similarly in copyright cases nothing is black and white and each case is heard on its own individual circumstance and merit ,,,,,

The Ball !
I "used" a photograph which at the time to me an unknown photographer and posted the photograph I used right along side my derivative works with no claim of ownership by me ,,, under the circumstances that it happened which were clearly explained I used a photograph which to the letter of the law is copyright infringement ,,, did I steal something " NO " maybe you could elaborate your use of the word stealing and how it applys to my case ?
Seeing that none of this deal had anything to do with you at all it points to you being just a voice that yells out hang him from the shadows of the back row all the while bostering your agenda mentioning your numbers of phantom friends supposedly agreeing with you .

I dont like that you have tried to expand and insinuate here when you left the thread direction of open discussion on copyright and started pointing fingers at me and others in a non naming callous way which I find non stand up and slimey , I respect a lot of people on this board and see many that try to help others you are not one of them , I visualise your character as that of fan in the cheap seats that boos a fighter on his way to the ring .

I made a mistake here in using the guys photograph thinking if I posted the originals that I was giving credit to the takers , apparently not so and took it down as soon as I was aware he wanted it down , no gain no harm , on the contrary he has probably had more than a 1000 new vistors to his website as a result .

Rod





Edited by RodBarker on Feb 18, 2008 at 07:09 AM GMT


Edited on Feb 18, 2008 at 02:09 AM
Feb 17, 2008 at 08:51 PM
OutsideShooter
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p.1 #10 · copyright and derivative works


"no gain no harm"?

Controversy is nonproductive, but I am totally with Arka on this one Rod. If the artist wanted it down, there's the harm. Regardless the visitors sent, it should not have been done without permission, period. There can be no defense of borrowing someone's ANYTHING without permission, specially given that we are copyright sensitive.

While we can all appreciate that you may be a good artist/photographer, the doing before asking is unacceptable now and going forward. I will not respond as no argument on your part could dissuade me. I can see why Fred closed the discussion prior.
Feb 17, 2008 at 10:04 PM
kkertz
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p.1 #11 · copyright and derivative works


RodBarker wrote:
The original picture taker was not known to ask permission from , did you not see that part in the response ,

You couldn't ask for permission? Really? Click on the link below and scroll down a bit. That's funny, did you not see the photographer's (Pfiltz) Email and PM button right below the photo you chose to pirate? The original photo you claim was from an unknown photographer, is found right here in a Fred Miranda thread. Wow! What are the odds of that?

If Pfiltz' photo doesn't show up, click on your refresh button, it's the seventh post on the page...

https://www.fredmiranda.com/forum/topic/596485/2
Feb 17, 2008 at 10:15 PM
kkertz
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p.1 #12 · copyright and derivative works


You asked for another specific example of this happening, here you go. Below you will find a screen capture of a post in this forum a few weeks ago that I responded to. The thread has since been deleted.

Screenshot from Fred Miranda...

http://www.kevinkertz.com/fm/lithe_.jpg


Screenshot from original photographers website...

http://www.kevinkertz.com/fm/NormanJeanRoy_.jpg

What do you think? Is it fair to take this image from someone's portfolio or the magazine (Vanity Fair)? Is it fair to mess with the pixels and title it "lithe" as if it was your own art? Is it fair to then publish it online for others to view and comment on? All this without permission from the copyright owner and conveniently forgetting to mention that it's not even your own photo to begin with.

We're not making this up Rod. It happens too often. Simply ask the "picture taker" (your term) next time for permission. Give the original artist an ounce of respect.

Kevin
Feb 17, 2008 at 10:25 PM
RodBarker
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p.1 #13 · copyright and derivative works


kkertz wrote:
You couldn't ask for permission? Really? Click on the link below and scroll down a bit. That's funny, did you not see the photographer's (Pfiltz) Email and PM button right below the photo you chose to pirate? The original photo you claim was from an unknown photographer, is found right here in a Fred Miranda thread. Wow! What are the odds of that?

If Pfiltz' photo doesn't show up, click on your refresh button, it's the seventh post on the page...

https://www.fredmiranda.com/forum/topic/596485/2


I dont frequent the photography forums Kevin so your point is mute , any image I get from the internet are from Google , do you really think I would take a picture from this forum and post it in this forum ? is that what you are suggesting , doesnt that sound pretty stupid to you , some more innuendo to fuel the fire eh !

This is what I dont like about this Kevin , the innuendo and accusations , have I denied anything , have I tried to hide anything , no , I just explained how it all unfolded and get called a thief and a now a liar , I will tell you again you would not finish the sentence standing in front of me and its on this very point that Im upset on ,,, what do you want blood ?

Outside Shooter ,,,,
Copyright sensitive I now fully understand your point and to what degree .
Personally I dont think the threads should be locked this stuff needs to be hashed out .


" We're not making this up Rod. It happens too often. Simply ask the "picture taker" (your term) next time for permission. Give the original artist an ounce of respect. "

Your making it up about me with suggestions that all my work is stolen , your not stating directly but the assumption is there , but that goes along with your lashing I suppose , the same as you belittling the art but you make a point of being called a picture taker like its an ouch .
As far as anyone else on the board is concerned if they cant stand up for them selves in the works they present Im not carrying thier load as well , I have never been one to run and hide ever over something I have done it wont start now .

I did the wrong thing according to the law with no disrespect intended towards the photographer I have learnt a valuble lesson here that I wont forget , on the other side of this coin I never stole anything or lied about anything and on those points I wish we were all standing in the same room , the moment it went personal which was right at the start instigated by you the arena changed .

Rod







Edited on Feb 18, 2008 at 01:48 AM
Feb 18, 2008 at 12:45 AM
Arka
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p.1 #14 · copyright and derivative works


Rod,

Your diversion about my being a "fan" in the sidelines in the creation of art is one that other distinguished artists here might be happy to rebut; I won't waste time doing it because that's not the issue, and you know it. And as some of my "phantom friends" have made their presence evident in this thread, perhaps you might find a bit more honor in the "agenda."

At bottom, you can make all the unsubstantiated accusations you want, but they carry far less weight than the one I will make here; you copied Pfilz's work unlawfully, and the only "defense" you have is that you're in Australia, and Pfilz is here. He could sue you over there, but it will have to go through Australian courts.

I find your single act of infringement beneath contempt, and hence couldn't care a whit what you think of me in kind. I don't need your affirmation to make or break me as an artist, nor do I profit from your teachings. So let's leave your thoughts about me and my "shadowy agenda" to the sidelines, shall we?

You violated someone's rights, and made lousy arguments to show that there was a "gray area" in the law that applied to your use. What I am telling you is pretty simple. Generally, it doesn't matter whether you meant to copy or not, or whether you took ownership of the work so copied. Whether you meant it or not, you did something wrong; take the clarification or leave it.

You cited caselaw that had nothing to do with copyright to back up your meritless defenses. I categorically rebutted your refuge in a bad example, and now somehow I am the one obfuscating? You have no clue what you're talking about when it comes to the applicable law, and hence, I reassert my initial point; it's always best to ask permission first. I am astonished that you could find such an assertion to be even remotely controversial.

You persist in propounding your enormous misunderstanding of a complex area of law. The copyright law fundamentally grants authors a right to prevent others from improperly copying their work. That right doesn't disappear because the alleged copyist didn't assert ownership, or copied in good faith. On these facts, it stems from the mere act of copying. Period. You can't demonstrate a fair use, and you can't demonstrate that your free speech protections were contravened by pfilz's copyright. You made bad arguments, and you need to know they are bad, just as much as you or any artist needs critique of their artwork.

Arka C.


Edited on Feb 18, 2008 at 02:10 AM
Feb 18, 2008 at 01:58 AM
RodBarker
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p.1 #15 · copyright and derivative works


I wont go on with a big answer because its obvious that none sinks in only what you wish to comprehend ,,, but my admissions are as plain as day and I see no excuses being made ! I gave reasons and hows to what happened not excuses do you know the difference .

Im not arguing copyright , Im arguing accusations of theft made by you and Kevin , address those issues ! my arguments on this point are not bad , actually rock solid , I know I never stole anything , you insinuating I did is whats bad and its violating my rights , we have two issues here not one and Ive admitted my mistake !

I agree every artist needs critique , its just nice when it comes from somebody that can show they know what they are talking about and has a right to criticise .

Rod

Edited on Feb 18, 2008 at 02:33 AM
Feb 18, 2008 at 02:30 AM
kkertz
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p.1 #16 · copyright and derivative works


Rod, I have a personal policy not to say anything online that I wouldn't say to the person's face. I consider your comment that I wouldn't finish my sentence if I was standing in front of you as a threat. You've said this on more than one occasion. If you can't communicate your position without throwing in tough-guy remarks, then I believe we should end this coversation right here.

I stand by the two verbs I've used.

Steal: To take (the property of another) without right or permission.
Pirate: To make use of or reproduce (another's work) without authorization.

Art is property. Do I think you're a habitual thief going around stealing from old ladies and kid's candy... no! I simply said that you took something without permission. By definition that is stealing. You then made use of it without authorization... that is pirating. Go threaten a dictionary, not me.

Kevin


Edited on Feb 18, 2008 at 02:54 AM
Feb 18, 2008 at 02:53 AM
Arka
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p.1 #17 · copyright and derivative works


Since you are so intent on seeing work, here's a down-rezzed sample I painted about 6 months ago. Law school keeps me away from my art, so I don't get to draw as much as I would like, but this underpainting was was created from blank canvas in Corel Painter X in a little under an hour. It was a limited time study, as I like to train my eye and hand classically (from life when possible, from reference photos I've captured otherwise). I eschew the approach of using an underlying photograph because I believe that it cheats me of valuable rendering skills.

There, now I hopefully have shown you I can draw some of the time. now on to your indignation at being called a thief...
Feb 18, 2008 at 02:54 AM
Arka
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p.1 #18 · copyright and derivative works


Your conduct is that of a thief at worst, and a lazy artist at best. The only thing missing is clear intent, but that might just be enough to clear you of the label you so despise. I'm not well versed in the criminal law, so I won't speculate on it. But intuitively, I see a great deal that is wrong in what you did, and in that sense, your defense of your conduct is contemptible. You took someone else's work, turned it into a "smudge painting" or whatever it is you call it, and then posted it as a combination of your work and his.

What you took from the artist was a moral right to not have his artwork be the subject of your smudge process. If you did that to one of my photographs, I would be quite annoyed, and construe it as degradation and distortion. The law protects those rights, to a limited degree, through intellectual property laws that label you an infringer. But like it or not, you are infringing on what many legal scholars would construe as a property right, and you do it without authorization. There's something wrong with that in my book, and something even more wrong with your facile attempts to defend yourself from one form of liability or the other.

Arka C.


Feb 18, 2008 at 02:58 AM
RodBarker
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p.1 #19 · copyright and derivative works


Its not a threat Kevin , its what I would do when somebody with no right makes a very derogative personal attack where they are wrong , what you would do is entirely up to you !

Steal: To take (the property of another) without right or permission. ,

I didnt take he still has it doesnt he it never left his sight right , I used and I would argue the difference between copyright infringement in the way I used and presented the works and stealing which is dishonest , I wasnt dishonest here and thats the difference and thats what I find so offending , you are trying to slam dunk what actually happened into a black and white ruling and its just not so , seeing as you are the whistleblower I guess you feel you are judge and executioner as well .

Thanks for your insite Arka , I was a jerk in making a mistake and your a jerk for your public slander .





Edited on Feb 18, 2008 at 03:39 AM
Feb 18, 2008 at 03:23 AM
HinduG
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p.1 #20 · copyright and derivative works


Here is another fun word to keep in mind: http://www.merriam-webster.com/dictionary/libel

FWIW

FM rules clearly state you not allowed to post images unless you are the original copyright owner, or you have the express permission from the copyright owner.

Doing so can be in very lame. The example kevin posted illustrates that there is indeed a problem with people misrepresenting works as their own.

But calling Rod a thief, and a pirate is uncalled for. Yes he broke the rules of the forum, but personal attacks are unwarranted and unnecessary.

Are you both (Arka and Kevin) going run to this thread and attack the OP: https://www.fredmiranda.com/forum/topic/616679

By your definition, that thread's OP is a pirate, and likely a thief because he posted an image ,copyrighted by Lifetouch, of his nephew who was the victim of a hatecrime.


Edited on Feb 18, 2008 at 03:42 AM
Feb 18, 2008 at 03:41 AM
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