Sketches
Tim & Ronna Verthein
David writes:
> For $150 Rob will sketch a portrait of you or anyone you choose based upon a
> photograph you send him. He claims that "When I sketch a portrait, I have
> really seen that individuals face!" which I found a little amusing as he is
> basing his sketch upon a photograph of a person that he most likely never
> "really" meets.
>
> Question: Can he be doing this without risking copyright infringement? He
> appears to be set up as a business and offering this service.
This is an interesting question. Living here in "craft sale mania" and being
a regular attendee at flea markets, and the like, I have seen over the year
hundreds of people who will sketch a portrait from a photo, sketch your
hot rod or collector car from a photo, put your photo on a tee shirt, even
paint a very elaborate full color car poster, even do woodburning of your
collectible in a hunk of wood, all from photos. I've never thought of it in a
copyright vein before...but..how many photographers would offer
woodburning? And what would you charge a regular portrait customer to
let them use the photo they paid you for, for their own use? I think if they
guy was kaing portraits and selling 'em to the public at large that would be
different. Like, here's a great full color painting of a 57 Chevy (copies
from Joe Photographers shot), and they print a limited edition of 500 of
'em and sell 'em. They, they are outta line. But if I were to take my photo of
me, that Joe shot, and had it made into a sketch..isn't that MY right to do
so? How many portraits shot by photographers wind up in other printed
mater. eg: local Realestate man Hank Listing has the Joe Photo Shop come
shoot his portrait. He buys a standard package of x number of poses/print
sizes. He hangs one in the office. 6 months later, he decided to put together
a brochure to send to potential customers. He takes a wallet size shot from
the session to his local printer, says here, make this bruchure, and stick
in my picture showing how sincere I am. Then, he buys a Hank Listing
Real Estate ad in the paper. Give 'em the ad copy, and hands 'em a picture to
use in the ad. Then he buys a few TV ads to back up the direct mail
campaign, and super imposed over the TV pictures of the beautiful homes
he has for sale, there's a pic of ol' Hank. Then..he runs for school board,
puts this pic on his campaign signs....etc..etc...
Now I don't know about other places, but here in SMALL TOWN USA this is
normal operating proceedure. Non of the photographers seem to care. The
photographers here seem to be providing photos for you to do what you
want with them. The only exception is the local photofinnishers will not
make copies of copyrighted shots.
How about all those high school senior portraits that get taken? They all
wind up in the yearbook, even if the kids go to some big fancy schmancy
outta town high buck photographer. They still submit 'em to the yearbook
and they get printed.
I know a lot of people who get portraits done just so they have a supply of
photos of themselves available for thes types of things. I have yet to see
any portrait contract here that excludes the portraitee from doing what
they want with their photo. I generally don't do portraits..eg I don't have a
walk in studio..the few I do are usually local business people, and I'm
shooting them for a specific project, like annual report, etc...
In the case of our sketch artist...what percentage of photos he receives to
sketch from are actually from "professional" photographs? I'll venture
that 75% come from family snapshots, 20% come from school photos, and
5% are from regular photo sessions. BTW, I have 4 kids who all get their
photos taken at school, we sign nothing, and everyone does what they want
with the photos. There is no copyright information given, no limits on use,
and I'm sure the millions of these pics taken around the country wind up
published in many forms. And if someones Mom sees the sketch artists ad,
she'd probably feel fine sending in Jrs school photo..after all she bought it,
and there are no contracts or limitations on it's use.
Tim Verthein Photography
Grand Rapids, Minnesota
--
"There's Always Sunny Weather When Hepcats Get Together"
Visit our web site-- http://www.uslink.net/~hepcats/
Stacy Walsh~Rosenstock
Tim,
I think you really have to consider what "personal uses" a client may later
have for an image when you give an initial price for prints. Particularily
now that so many people have scanners and digital family portraits are
becoming popular, the notion that a portrait may appear in other forms is
not inconceivable.
I had a vaguely similar situation a couple of months ago when I sold
re-print rights for a photo to a law firm who said they wanted a few copies
of a newpaper article to pass around the office. I anticiapted the article
would make its way well beyond the office so I carefully outlined what was
included in "in-house" use, and what was not. Within minutes of faxing the
invoice to the client, I received a phone call requesting "direct mail"
usage rates.
Stacy
stacy's home journal.... over one million bytes served
http://www.interport.net/~sr/
Woody Williams
Under copyright law, I don't think it's written anywhere that in order to
be considered "original" a work must arise from a specific source. A work
might come from an "on-site" session, from inside the artists head or from
another source like a painting, photograph, illustration or the like. The
only questions which might arise are 1) Is it "derivative," and 2) Is it a
"copy."
If, indeed, the work can be considered derivative or an outright copy, then
the question is whether the source is protected by copyright, trademark,
patent or other laws and if so, was permission granted. If the source
isn't protected or permission granted, there's no harm.
Portrait photographers rarely retain the same kind of rights to their works
as stock photogs. Can you imagine "Family Photo" or "Glamour Shots"
restricting usage or suing because someone used the photo in the "Business
Briefs" section of the local rag? I suspect a review of the contract, sales
slip or other paper work used by a portrait studio would answer the
question.
"Good ol' Rob," doing portraits from your photograph may indeed be creating
an "original" work in every legal sense of the word despite any copyright
protection on the photo. If the work is significantly different and
contains original elements, then there's no question. Rob's stylistic
interpretation may be quite sufficient to qualify the rendering as a "new
work."
Woody Williams: member
Graphic Artist Guild; HTML Writers Guild
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David Riecks
At 08:46 PM 12/9/96 +0800, Woody Williams wrote:
>"Good ol' Rob," doing portraits from your photograph may indeed be creating
>an "original" work in every legal sense of the word despite any copyright
>protection on the photo. If the work is significantly different and
>contains original elements, then there's no question. Rob's stylistic
>interpretation may be quite sufficient to qualify the rendering as a "new
>work."
I don't have any trouble agreeing with this in principle, however the key to
me would be if the work is "SIGNIFICANTLY DIFFERENT." Trouble is I took a
look at his web site and would NOT agree that his interpretation was
anything more than a "copy" of the original.
David
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David Riecks * rie...@prairienet.org
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Champaign, IL 61820 * 71543,16...@compuserve.com
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Woody Williams
> >"Good ol' Rob," doing portraits from your photograph may indeed be
creating
> >an "original" work in every legal sense of the word despite any
copyright
> >protection on the photo. If the work is significantly different ...>
>
> I don't have any trouble agreeing with this in principle, however the key
to
> me would be if the work is "SIGNIFICANTLY DIFFERENT." Trouble is I took a
> look at his web site and would NOT agree that his interpretation was
> anything more than a "copy" of the original.
That's a matter of interpretation and will only be resolved if the matter
goes to arbitration or to the courts. In this case, who's being wronged...
who will bring such a case to court or arbitration? There's a lot of "If's"
in my post for very good reasons and the important point in the above
paragraph is that a work "*could be** original even though it's basis was
the work of another. It's not obvious like your stock shot suddenly
appearing on a web site or in a magazine without permission.
Other important points prior to the above have even more relation to Rob's
work: A family snapshot, photo from by a commercial service like "Family
Photo," or work by most portrait photographers are probably, either
defacto or de jure, unprotected.
"Uncle Fred" with his point-and-shoot, Family Photo or "Jane Doe: Portrait
Photographer" have a different set of values and perceptions than, for
example, stock photographers. If their client chooses to have a sketch done
from one of their photos (whether or not the work qualifies as original or
not) who cares? They are probably "selling all rights" in their contract -
One could simply check with a local outlet to make sure. In the case of
"Uncle Fred," he's just gving it away.
There can be no violation of copyright law, principles or ethics in the
above scenario.