Incense

by Bart Arondson

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Are both scenarios legal?

  • I own a photo, and someone painted a replica (using canvas and paints) and sold prints.
  • Someone altered it using Photoshop to look like a painting and sold prints.

Do I need to copyright my pictures to prevent this?

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8 Answers 8

up vote 17 down vote accepted

In most countries copyright registration is not required, and copyright is granted by the act of publication. In the US, voluntary registration is available, which is needed to sue for infringement, and gives the copyright holder more possibilities when collecting damages.

As far as the scenarios go, both will include elements of the original work, so they would fall into the category of a derivative work, and depending on the originality (or lack thereof) of the reproduction, may infringe on your copyright. The first is much tougher to prove though, because the original elements of the image are being reproduced in a different medium. In the case of a change using Photoshop, there very well may be enough similarity to prove that infringement has occurred.

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You should consult a real lawyer. Do not expect any legal advice over Internet to be meaningful.

My personal opinion is that painted replica is legal and Photoshop alteration is "derivative work" and can be considered legal depending of the copyright of the pictures. Having no specific "written" copyright statement implies some default copyrights and in this case Photoshop alteration is probably not legal.

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1  
I'm not a lawyer either, but by plain definition, a painting derived from a photograph is a derivative work. –  mattdm Jan 25 '11 at 14:49
    
Both of these are derived works. –  Reid Jan 26 '11 at 3:46

Your work is always copyrighted, there is no need to register it somewhere. This implied copyright means that you have all the rights to your work. (If you release your work under a certain license it means the same or reduced rights, you can't use a license to increase your rights.)

Whether a copy of your work is legal or not, depends on the sitation. If your photo is unique enough, and the painting isn't, it would be illegal to sell copies.

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While the caveats about Internet legal advice noted by other answerers apply of course, I think this one is pretty clear: both scenarios involve creation of a derivative work, and if done without permission would be a copyright violation in the USA and many other countries. The fact that the resulting derivative works are sold would generally increase liability.

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2  
What is this issue everyone appers to have with legal advice over the Internet? Is it any less meaningful that photographic, computer-related or any other kind of advice? –  che Jan 25 '11 at 11:50
    
The consequences of bad computer of photographic advice are less dire than the consequences of bad legal advice could be. I'd give the same big warning for medical advice. –  mattdm Jan 25 '11 at 14:50
1  
Derivative works can be legal provided they have original elements and are transformative. –  labnut Jan 25 '11 at 14:52
    
Well, there are a lot of caveats there @labnut. Derived works can be an OK use even if they're 99.95% the same, in some circumstances (e.g., open source software). My understanding is that almost by definition, a derived work would be infringing. It is absolutely not sufficient to add your own elements and/or change it "enough". There are things like fair use which would make it OK; neither of the OP's scenarios are anywhere near fair use. But in general, if you are concerned with the nitty gritty of whether a particular use is infringing, you really do need to consult a lawyer. –  Reid Jan 26 '11 at 3:44
    
@Reid, in my reply you will see that I stated both of the OP's scenarios were, IMHO, infringing. Open source is another problem, we need not consider it here. Yes, there are many caveats, which was why I linked to Professor Stern's article. As for adding elements and making changes to produce a derivative work, that can be fair use - see the famous Mona Lisa - LHOOQ example quoted by Stern. –  labnut Jan 26 '11 at 19:53

Copyright is implied on any works you produce and you don't need to "copyright" your IP. I would suspect that the painting is not illegal (since it is a creation based on your idea, not a copy of your creation itself). The altered photoshopped copy I would be illegal.

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  1. This may or may not be infringing, depending on the originality of the new work, but in most cases I would say it would be non-infringing. Of course, the owner of the photo can still attempt to sue, but it'd probably be found to be non-infringing especially if the only connection to the original photo is that the artist saw it across the room while painting (and didn't do any cut and paste from it in Photoshop, did not use mechanical means to copy it, didn't lay a stencil over it, etc).

  2. This would certainly be infringing.

Registering copyright on your pictures does not alter what people can and can't do with them, but depending on your country (ie the USA), can affect what you can claim if you successfully sue them in court.

Here's a case of this actually happening with a painting published by the Toronto Star which was found to have been based on a photo by someone else.

Here's the Toronto Star's side of the story

Here's the author of the photo's side

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Effectively you are asking, when is a derivative work legal?

Two important tests to be applied are
1) Originality
The derivative work "must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright law’s requirement of originality."

2) Transformativeness
"Transformativeness is a concept used in United States copyright law to describe a characteristic of some derivative works that makes them transcend or place in a new light the underlying works on which they are based."

"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."

Using your example, where a photo is simply reproduced in another medium, such as oils, it fails both tests:

1) Originality, it is a rote, uncreative variation of the original work.
2) Transformative, it does not add new information, new aesthetics, or new insights and understandings.

All quotes taken from Wikipedia.

For a further discussion see this very interesting article by Professor Stern
L.H.O.O.Q.--Internet-Related Derivative Works

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I worry that you are not fully answering the OP's question. I see the relevant quotation from Wikipedia (specifically, en.wikipedia.org/wiki/Derived_work) as: "Copyright infringement liability for a later work arises only if the later work embodies a substantial amount of protected expression taken from the earlier, underlying work." It's the "substantial amount of protected expression" that matters in this case, not whether it's original and transformative enough to be a derived work. –  Reid Jan 27 '11 at 2:43
    
Yes, substantiality is important. But in the case of the OP this was a given, the entire work had been copied. So all that was left was to apply the tests of originality and transformativeness to see if the derivative work nevertheless qualified as fair use (and we agree it does not). So I think the answer was complete. –  labnut Jan 27 '11 at 11:24
    
@Reid, The LHOOQ-Mona Lisa example illustrates that substantial copying can nevertheless be fair use if original changes are made that are transformative –  labnut Jan 27 '11 at 11:48

Shepard Fairey and the Associated Press recently settled a law suit about derivative work. Fairey used an AP photo of Obama to create his famous poster before the 2008 election. You might find some pertinent legal information by reviewing a few articles on this.

http://www.nytimes.com/2011/01/13/arts/design/13fairey.html

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1  
That is a nice example of the problems of derivative works. –  labnut Jan 25 '11 at 15:14
    
There's an interesting account of a similar situation, with a lot of variant angles considered, here: waxy.org/2011/06/kind_of_screwed –  Tom Anderson Oct 12 '13 at 11:30

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