[STOCKPHOTO] Creative Theft Question - Communication Arts v Getty
robert_rosenthal2001
Need some advice. We just discovered one of my wife's photos
(distributed via Photodisc/Getty) has been copied by a painter and
showcased as his own work - in Communication Arts, no less.
Before I saw it for myself I was doubtful (maybe some similarities
would be there), but it's the real deal. This guy basically took a
photo from Photodisc that consisted of a woman at center in the
foreground, reproduced it with painterly effects (still very realistic
though), added a few props (such as a small book). The pose, woman's
looks and build, composition, color, and crop are all the same. Exactly.
There are several ironies here. First, the guy is a former art
director, according to his website. He should know better. Second, by
submitting this painting to Communication Arts he is basically
bragging about his creativity when all he did was comp off my wife's
work. Third, he stole from Getty, which has deep legal pockets.
Fourth, he only lives 20 minutes away!
My questions:
1. We've only just begun this process. Should we wait to see if his
work sells in order to try to claim more damages?
2. Should we only rely on Getty's lawyers for this? And what can we
expect from them?
3. Should we involve Communication Arts in the process?
4. Call me naive: why can a guy buy a photo from Photodisc, put it on
a book cover, and sell the book. But he can't put it in a painting,
and sell the painting?
Thanks for your help.
Regards,
Robert
----------------------------------------------------------------------
Courtesy of The STOCKPHOTO Network - http://www.stockphoto.net/
Posting Rules - http://www.stockphoto.net/Subscriptions.cfm#rules
STOCKPHOTO Archives - http://www.stockphoto.net/Archives.cfm
STOCKPHOTO Bookstore - http://www.stockphoto.net/bookstore/
----------------------------------------------------------------------
Yahoo! Groups Links
<*> To visit your group on the web, go to:
http://groups.yahoo.com/group/STOCKPHOTO/
<*> To unsubscribe from this group, send an email to:
STOCKPHOTO-...@yahoogroups.com
<*> Your use of Yahoo! Groups is subject to:
http://docs.yahoo.com/info/terms/
David Kilpatrick
robert_rosenthal2001 wrote:
There is a well-proven Canadian/US law precedent for this - the image of
the Indian chief which was stolen from a photographer and entered in a
Corel art competition.
It's a nearly identical scenario, so case law is 150 per cent on your
side before you start - and there is also a proven level of damages.
You should go ahead, hire a good copyright lawyer who can dig up the
Corel case (well documented in the international press), and walk off
with substantial damages.
That is, if you really want to ruin one artist's life, possibly render
him homeless and deprive his kids of their inheritance should they ever
have had one. That is your decision but that's the level of awards often
made in such cases.
Personally, I would ask the artist for the original of the painting and
a couple of other paintings, to keep. That way you get back what was
always yours, and a bit more, and it doesn't ruin someone's life, and
there is no need for lawsuits. If he refuses because he has sold the
painting, ask for the proceeds from the painting in full, plus a couple
of paintings to keep, as compensation. If that doesn't work, cease to
care whether you ruin his life, and go ahead.
David
--
www.iconpublications.com www.troubadour.uk.com
www.maxwellplace.demon.co.uk/pandemonium
Original recordings: www.soundclick.com/davidkilpatrick
Photographs: www.alamy.com
Ei Katsumata
<getlisted@g...> wrote:
> 4. Call me naive: why can a guy buy a photo from Photodisc, put it on
> a book cover, and sell the book. But he can't put it in a painting,
> and sell the painting?
Robert,
I would've thought that the RF license would allow the buyer to use a
RF photo in a painting. But maybe I'm naive as well. Have you read
the PhotoDisc licensing agreement? And what did Getty say about this?
Ei Katsumata
John Fowler
>
>Need some advice. We just discovered one of my wife's photos
>(distributed via Photodisc/Getty) has been copied by a painter and
>showcased as his own work - in Communication Arts, no less.
I'm not familiar with Photodisk/Getty. If that's RF, didn't you give
up all your rights to control any use of that image?
John T. Fowler
Photography For Education
http://www.johnfowler.ca
http://www.StockArtists.com/JohnFowler
Bert Krages
>1. We've only just begun this process. Should we wait to see if his
>work sells in order to try to claim more damages?
The first step should be to check with Getty to see if the artist licensed
the image and on what terms. If he properly licensed it, then it is likely
that he committed no legal wrong. If he did not license it, basing a
painting on a photograph would be copyright infringement. You shouldn't
wait to see if the work sells because courts generally don't reward people
who sit on their rights waiting for the damages to grow.
>2. Should we only rely on Getty's lawyers for this? And what can we
>expect from them?
Read the agency agreement and see what it says about copyright
infringement. Many agency agreements do not address who is responsible for
pursuing infringers in which case the right belongs to copyright owner.
> 3. Should we involve Communication Arts in the process?
Address the prior issues first.
>4. Call me naive: why can a guy buy a photo from Photodisc, put it on
>a book cover, and sell the book. But he can't put it in a painting,
>and sell the painting?
If he buys the photo, he can put it in a painting. If he doesn't buy the
photo, he has no right to put it on a book cover.
Bert P. Krages
Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
Telephone: (503) 597-2525
Facsimile: (503) 597-2549
kra...@onemain.com
Tech
here. Another risk of placing your images with RF....
Cheers
Jeff Boucher
Stockphoto Seller
The terms of RF licensing agreements from various sources vary, but I'm guessing the painter has done nothing legally wrong. The argument will go that the painting and any prints of the painting are simply products for sale that incorporate a properly licensed RF image. Some angles that might open up the issue for your wife might be if the painter tries to copyright the modified image in his/her own name or if the painter tries to relicense the modified image to others--both of which would possibly violate many common RF licensing agreements.
The big mistake, which is now water over the dam, was to put the photo into RF distribution in the first place. If it had been RM, it could have been licensed to the painter for the specific intended use and a proper fee for that use collected. In the RM license, the covering copyright conditions would be spelled out.
Carl May/BPS
robert_rosenthal2001 <getl...@gmail.com> wrote:
Need some advice. We just discovered one of my wife's photos
(distributed via Photodisc/Getty) has been copied by a painter and
showcased as his own work - in Communication Arts, no less.
....
4. Call me naive: why can a guy buy a photo from Photodisc, put it on
a book cover, and sell the book. But he can't put it in a painting,
and sell the painting?
[Non-text portions of this message have been removed]
robert_rosenthal2001
Ok, so a number of members here have said that purchase of a RF
picture makes it OK for the painter to buy the photo, copy it in
painterly style, and then sell it. It's royalty free, right?
The argument I'm trying to make here is that the painter is basically
selling the same image, just now it's rendered in a painterly way. My
wife, the photographer, has only granted sales rights to Getty Images,
not to this guy. How can he make money selling (and presumably even
licensing, if he makes prints) her copyrighted image? Doesn't only
Getty have that right?
Someone on this list already mentioned the precedent set in the Corel
case from 1994. I researched it, and found that the judge awarded the
plaintiff, a photographer, a judgement from the infringer, who used
Corel (an Illustrator-like vector drawing program) to render a Stone
image. The infringer then entered the image in a Corel contest and won
first prize ($100K). Granted, that was RM, but Stone recognized that
if artists could take an image, reproduce it in new medium, and then
sell it as their own, this would kill its business.
The news now is that Getty is looking into this.
Thanks,
Robert
>
> Carl May/BPS
David Kilpatrick
robert_rosenthal2001 wrote:
> Folks,
>
> Ok, so a number of members here have said that purchase of a RF
> picture makes it OK for the painter to buy the photo, copy it in
> painterly style, and then sell it. It's royalty free, right?
>
> The argument I'm trying to make here is that the painter is basically
> selling the same image, just now it's rendered in a painterly way. My
> wife, the photographer, has only granted sales rights to Getty Images,
> not to this guy. How can he make money selling (and presumably even
> licensing, if he makes prints) her copyrighted image? Doesn't only
> Getty have that right?
>
Good to hear the Corel case lead was of use. The situation with RF
images - and I have PhotoDisc and other titles here - is that you are
not allowed to create a product for sale using them. They can't be used
for greetings cards or posters, or anything in which the image itself is
the primary item sold. You can't sell photo prints from them, or copies
of the file, or photo prints from a derived version.
This also applies to Alamy RF and nearly all RF contracts I have ever
seen - the licence issued excludes the creation of a new 'image' product
sold in its own right.
However, a book cover does not come into this class. You do not buy a
book for its cover (except of course when judging beauty contests :-))
and the cover is not the item sold, it is incidental to the product.
Similarly, the artist can create a work which would be used in a
magazine as an illustration. As I understand it, making even just a
single painting and then SELLING THE PAINTING infringes the terms. There
is no distinction between making a single product for sale (one
greetings card) or 10,000. If the artists makes a limited edition from
the painting, and it is materially a work copied from your original,
he's almost certainly breached the terms of the RF CD. If he sells the
painting, ditto. If he allows the painting to be reproduced as an
editorial illustration, or used as a book cover, or as a video title etc
he's probably within bounds of the CD RF terms. If he allows it to be
used as a poster, or on a calendar, on a mug or plate, as a screensaver
or puts his new artwork into electronic form for resale - he's probably
broken the RF conditions.
That's how I would read the terms attached to most of the CDs I have
here. A couple have different contracts and allow unlimited further uses
and were issued originally to allow people to create new artwork -
that's different.
David
Stockphoto Seller
The advice you were getting from most was to look at the specific language in your wife's agreement for the RF with Getty and in the licensing terms for the image that went with the sale of the PhotoDisc image to the client. Unlike the generalities many here are applying to RF in responses to you, there are differences in details from one RF stock company to another and from the boilerplate in one licensing agreement to the next. Without knowing the specific terms in the legal wordings, all any of us can do is guess--which is all I did in my earlier response to you.
Carl May/BPS
robert_rosenthal2001 <getl...@gmail.com> wrote:
Ok, so a number of members here have said that purchase of a RF
picture makes it OK for the painter to buy the photo, copy it in
painterly style, and then sell it. It's royalty free, right?
Ei Katsumata
wrote:
> The situation with RF
> images - and I have PhotoDisc and other titles here - is that you are
> not allowed to create a product for sale using them. They can't be
used
> for greetings cards or posters, or anything in which the image itself
is
> the primary item sold. You can't sell photo prints from them, or
copies
> of the file, or photo prints from a derived version.
For everyone's reference, Getty's (PhotoDisc) RF license agreement can
be seen here:
http://creative.gettyimages.com/source/home/license.aspx
Ei Katsumata
Todd Muskopf
photo and created a life size sculpture based on it. "String of
Puppies" was the name of it. He was sued by the photographer and
lost.
I'd think that the answer in your case would lie in what rights are
bequeathed for usage. If it was totally RF with unlimited usage and
such, it becomes a gray area.
Todd
--- In STOCK...@yahoogroups.com, "robert_rosenthal2001"
<getlisted@g...> wrote:
Stockphoto Seller
Carl May/BPS
Ei Katsumata <ekats...@yahoo.com> wrote:
--- In STOCK...@yahoogroups.com, David Kilpatrick
wrote:
> The situation with RF
> images - and I have PhotoDisc and other titles here - is that you are
> not allowed to create a product for sale using them. They can't be
used
> for greetings cards or posters, or anything in which the image itself
is
> the primary item sold. You can't sell photo prints from them, or
copies
> of the file, or photo prints from a derived version.
For everyone's reference, Getty's (PhotoDisc) RF license agreement can
be seen here:
http://creative.gettyimages.com/source/home/license.aspx
Ei Katsumata
----------------------------------------------------------------------
Courtesy of The STOCKPHOTO Network - http://www.stockphoto.net/
Posting Rules - http://www.stockphoto.net/Subscriptions.cfm#rules
STOCKPHOTO Archives - http://www.stockphoto.net/Archives.cfm
STOCKPHOTO Bookstore - http://www.stockphoto.net/bookstore/
----------------------------------------------------------------------
Yahoo! Groups Links
[Non-text portions of this message have been removed]
----------------------------------------------------------------------
P.A. Luis Tena Orozco
I have a problem, a major News Paper here in Mexico took one of my photos
published in a web site without my permission and without my copyrights.
I contact the newspaper to inform about their mistake and now they are
redirecting me with their lawyers to negotiate for their mistake, they
deliver aprox 222,565 copies daily of the printed newspaper all over Mexican
territory plus the website.
Thanx in advanced for you help.
Luis Tena O.
Mexico City.
robert_rosenthal2001
The verdict is in, and apparently the lawyers at Getty have
determined the painter was within his rights under the RF usage
guidelines. Derivative is the key word they're using, rather
than "copy."
I thought it might be fun to showcase the two images and let you
guys see for yourself:
THE ORIGINAL:
http://creative.gettyimages.com/source/classes/FrameSet.aspx?
&UQR=fjbhir&pk=4&source=front&lightboxView=1&txtSearch=200128375-001%
20&chkRoyaltyFree=on&selImageType=7
THE DERIVATIVE WORK:
http://kellerart.com/images/paintings/the_melody_lingers.jpg
Me, I'm not surprised at legal outcome. We did go into this
with "our eyes open." But it galls me that this painter is lauding
his own creativity, all the way down to his signature "imprimatur"
or whatever on his splash page. And however understandable and
reasonable, it's nontheless dissappointing that a group like
Communications Arts will showcase the work of this guy without due
diligence.
Thanks,
Robert
--- In STOCK...@yahoogroups.com, Stockphoto Seller
Nestor Botta
legal protection for the artist that used your image, they could have
political reasons for not to publish a work that was not fully created by
this author...
NB
www.fotoma.com.ar/en <http://www.fotoma.com.ar/en>
--
nesto...@gmail.com
www.fotoma.com.ar <http://www.fotoma.com.ar>