Can I legitimately create derivative works from re-blogged source material?

Question

I've searched around without finding exactly the right answer--and I already know no answer here speaks for the final-say, legally. I'm just looking for general rules of thumb pertaining to my inquiry.

That said, I'm curious how copyright laws work when it comes to use of a reblogged photo.

Tumblr is thick with potluck image blogs. As a freelance fine artist, I love trolling these looking for inspirational images.

In this process, I have come across a multitude of really cool photos I'd love to do paintings from, but they have been blogged and reblogged in some cases hundreds of time, with no reference to where the image originated, much less who owns the copyright.

In such cases, I guess anyone who wants to be legally beyond reproach would just say "fiddlesticks, I guess I will not paint from this image since I cannot directly ask the known owner of the copyright."

However, I think that might be a little... overprotective to say the least. Just the concept some anonymous photographer would ever see the painting is fairly ludicrous, but still, to err on the cautious side, I'd like to know if there's a general rule of thumb as to how to approach this.

In most cases, the blogs are third and fourth or a millionth generations of the image. contacting the blogg owner usually just sends me on a goose chase of backtracking other blogs until if--by some miracle--I get to the original blog, who still just found the .jpg online someplace and has no info of the original photographer.

Would the string of liability go through all the blogs before it gets to me? Technically, wouldn't they all have broken the copyright laws and I merely borrowed from their pool of (illegal) photos...?

Two wrongs don't make a right, I know--but how on earth do you ever get to the original source when something's been basically thrown into the public consciousness of the net...?

Answer 1

In the US, there is really not any debate. The creator of the work automatically has copyright, except in the case of works-for-hire, where someone else does. Posting, reblogging, or sharing that work doesn't destroy that right.

In some cases, you may be able to claim that your painting is transformative, and not a derivative of the original. But the standards there are pretty strict. If what you are doing is fundamentally re-rendering the image in a different medium, even if the medium and result are very different, that's probably not good enough.

You may want to look into the Shepard Fairey vs. Associated Press case for a very recent precedent. Fairey's use is very arguably completely transformative, the source image is relatively generic (there's dozens of similar pictures of President Obama), and the AP wasn't making a lot of money from the image — but once it got to court his case looked bad enough that he had to settle.

Another recent case had to do with an image used to render an "8-bit" pixelized image for an album cover. You can read a good analysis of the case from a photography expert at Kind of Blue, Kind of Bloop, Kind of Screwed.

I don't think there would be a "string of liability" going through all of the blogs. You'd all be equally in the wrong. Now, someone with an eye to a lawsuit would probably pick the richest target — either the deepest pockets or the most visibility. But in terms of the law, you don't get a shield because someone else did it first. You need to do your own due diligence.

You can find more on the basic law from the US copyright office. The reason there's not many high-profile cases of this nature going all the way to a court decision is simply that the law is pretty clear, and they don't get that far. The fact that the infringers (in a legal sense; remember, you asked to keep the moral out of it) usually get a provision admitting no actual wrong is simply a standard part of the settlement process in our crazy legal system.

For an example which did go all the way, here's something which went the other direction — from a sculpture to a photograph to a stamp: The Korean War Memorial Postage Stamp Photo Case. Here, the court ruled that translation from 3D to 2D was not transformative enough. On a personal side, as with the legal blogger I linked to there, I'm not sure that having the law work this way is the best for society. I think we would benefit from a larger creative commons. But that's not the question.

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Update: Chris suggests the American Society of Portrait Artists article on painting from photographs, which gives a overview of the law from their point of view and provides references to a case with a court decision rather than settlement, Rogers vs. Koons, in which sculptor Jeff Koon's use of a photograph for the basis of a work was found to be not acceptable without license. This is one of several important cases on the limitations of fair use, another being the Mutant of Omaha ruling.

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And, to answer the last part of the question — how can you trace an image to its source? — you might have some luck with tools like TinEye reverse image search. They're far from perfect and can't always help find the actual original, but it'd be a place to start.

Answer 2

A somewhat different twist: if you don't know where the image originally came from you don't know its copyright and usage restrictions. The place you got it from may have taken it illegally themselves, possibly not even knowing they are in violation because they got it from a source of "free images" that had themselves taken it in violation of the law (I've more than once discovered my own work in such collections, clearly leeched from websites, sometimes with original watermarks removed (so the creators of the collections must have been well aware of the illegal nature of their practices)).
As others have stated: if you can't or can't be bothered to find the copyright owner and ask for permission, don't use the work.

Answer 3

There are a few things I would like to add here. First there is an absolutely great book I recommend reading for those concerned about copyrights, especially in your case. It is called Patent, Copyright & Trademark: An Intellectual Property Desk Reference by Richard Stim it helps provide a clear and concise view of how Copyright laws work (in the US). And it actually is written where the common person can understand it.

In the above mentioned book it gave an example of a Photograph published in a magazine. Then later the artist found out about a postcard that was nearly identical to the published photo. It was copyright infringement because it was not just a simple fish jumping out of a lake (what the photo was) but it had similar lighting, similar angles, etc.

It will ultimately come down to what the judge thinks about this. There have been cases (I do not have the information in front of me to cite at this time) where a derivative work used only 1 line of text and it was considered copyright infringement. While another case entire paragraphs where used and it was not infringement. In those cases it came down to how recognizable was the original work to what was created.

As mattdm metioned one avenue to explore are Creative Commons Licensed photos. Many of those photos allow you to change the original and use them commercially with a simple attribution and you can always contact the artist for full rights.

As for fair use it can be difficult to establish and again comes down to what does the Judge think. I will say this the bottom line is if you do not know where it came from be safe and do not use it. You may or may not be okay, it is really difficult to tell with re-blogged photos. And yes many of those sites are in direct copyright infringement but it just isn't worth going after them because it would cost more to go after than not. I believe someone mentioned here that in a lot of cases the owner will only go after someone with deep pockets or high profile.

Hope some of this information can help.