Hi Richard,
I don't mean to make light of your problem, it is real. And unfortunate. Sorry it happened to you. A better scenario would have been the artist contact you to ask permission. Then it could have been a proper tribute, as was my case. I'm sorry that didn't happen for you.
I see your point, but I still don't like it.Originally Posted by GPS
And his painting is not the photograph. It is his interpretation of what he saw - on your photograph...
Time to move on I guess...
And his painting is not your photograph either. It is a painting of the same scenery at best, or a painting based on your photograph at worst.
Even if he did paint looking at your photograph instead of the original scene, an interpretation of an interpretation, especially if it's done in different mediums, is simply an inspiration.
I think you are doing a great disservice to yourself with all this negativity. It will unnecessarily kill your own inspiration for some time to come and it could easily have health consequences.
You didn't lose anything even if he gained something, a situation equivalent to sharing knowledge on this forum, so it's essentially favorable to both of you. Be happy about it - you do create your photographs to be admired, after all, don't you?
(Now, if it was the likes of, say, Disney or Chevron, that would have been an entirely different matter.)
A lot of illustrative work is done this way, especially traditional magazine illustration.
Norman Rockwell was an expert photographer, he also had a full-time photographer and photo studio operation and actively cast for models, built sets, etc.
Nowadays illustrators will use digital cameras, import the photo as a template, and can even "Auto Trace" with vector drawing software.
And... it has been a long established practice for illustrators to pay for original or stock photography made by professionals. Some real professionals actually still do this, and you can bet any decent ad agency and/or prudent corporate buyer has checked this out and has an indemnification clause in their contract with the illustrator.
Now if you want to call the copycat a painter or high level-conceptual artist or something else fancier that's your business, but it still smells like an illustrator taking a shortcut to me.
But Marko, GPS, etc. are most welcome to buy that really fine, fine painting for top dollar ;-p I rather have Richard's original myself.
Sure. If I were you and wanted to make a point, I would send him a copy of your photograph and expressed thanks that he liked the picture so much as to undertake the effort to paint it. You make your point and you'll see how he takes it. Prophylactic...
Richard,
You know how I feel about your work, and this seems to me, beneath you. Appropriation is a valid means of expression. I was recently visited by a dear old friend who is the director of a prestigious photography gallery in NYC. She told me about a new exhibition, about which she was very excited. The artist used images from Google Street View to create his images. The "I saw it first" attitude is not very credible, or realistic. I think you should abandon the idea the painter has taken something from you, and adopt the position that he has given something to you. If he has painted your photo, he's added a new dimension to it (his interpretation), and in so doing, expressed his admiration for your work. I would be flattered.
To each his own. Frankly, I have no illusion about your taste...
Where did you get that idea?
Before 1978, copyrights were good for 28 years, and could be renewed once. Copyright notices were required, as was registration, to enforce the copyright.
After 1978, copyrights are good for the life of the creator plus 50 years (if the author is known and did not do the work for hire, in which case it's longer but measured from publication date). Copyright notices are not required, and neither is registration, to enforce the copyright. (The term was increased to 70 years in the 90's.)
This much is fact. What follows is what I have gleaned from much reading on this topic, but reading rooted in what the law actually says, and what authoritative sources say about it. Not what other photographers write on their blogs and websites, in which I usually find enough factual errors to bring all their observations into doubt.
Registration changes the burden of proof. The registered copyright owner no longer has the burden to prove he is the creator. But the copyright can still be overturned if someone else provides that proof. Without registration, a copyright owner must prove both prior ownership and also infringement.
What is infringement? It is copying. If the alleged infringer did not know or could not have reasonably known of the original, and made a similar work of the same subject by accident, then the most the copyright owner will be able to get is a cease-and-desist order, or payment of a license fee for what has been already published. Innocent infringement is still infringement, but it affects the damages that can be obtained. For damages, it must be proved that the infringer copied the work and should have known of the existence of the original. Registration puts the burden of proof on the infringer that they did not copy and could not have copied the original. Lack of registration puts the burden on the owner to prove that the accused infringer did, in fact, copy the original.
It is the tangible expression that is protected, not the idea. People in industry are instructed to keep notebooks where they jot down ALL their ideas on dated pages so that their ideas become tangible expressions. Nobody can copyright the view of the Grant Canyon from the South Rim. There are likely thousands of images made from some spots, and the likelihood that one is framed just the same as another is extreme. Thus, the work has to be similar enough to demonstrate that it was the expression that was copied, not merely the viewpoint. The more ephemeral the subject, the easier that is to prove, of course.
When an artist works from a prior artwork, they can create something that is transformative, and in so doing avoid infringement. But the derivative has to be transformative such that it is unlikely to be marketed to the same clientele. This notion was established with Campbell vs. Acuff-Rose Music, where a rock group remade Pretty Woman and did so transformatively enough to establish a uniquely different market. The court held against infringement in that case.
A diplomatic letter may at least extract the artist's story of how he came upon the image. I suspect hobby painters have been copying from other paintings and photographs throughout history, but the Internet has made it far easier for artist wannabes (like many of us, of course) to display their works in "public" and offer it for sale. So, they get caught. The painting of a Chinese man that I copied from a how-to artist book when I was perhaps ten years old will never attract such enforcement or cause damages, because it will never be seen beyond (hanging his head in shame) my elderly parents' living room wall. Kids these days post their "creativity" on facebook and elsewhere.
Rick "not a lawyer" Denney
Richard, it may not be as nefarious as you think. I once got an email from a guy who, with little tact, accused me of copying navigation icons from his website (circles with arrows inside). He was adamant that they were HIS and that I stole them. When I informed, and prove to, him that the icons I used were included in one of the Photoshop shapes menus, he was quite apologetic. He actually thought he invented that design.
As another example, I give you two photos. One is yours, another mine from 2009. With some exceptions, the photos are extremely alike. Depending on when you shot yours, one of the other of us could be accused of copying.
So before you take action you may later regret, it might be best to take a step back and, as others have suggested, consider the possibility that this was simply a coincidence.
Chuck
http://www.chuckkimmerle.com
I think I would need a bottle of Walker to see these 2 pictures as a copy of each other...
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