One of my photos was appropriated (maybe)

[Richard Wasserman]

It has come to my attention that a painter who lives in another state has a painting that he has exhibited that looks to me like an almost direct copy of one of my photographs that I have up on my website. The composition is identical as well as the aspect ratio. The painting depicts the scene at a different time of day, and he added part of a tree where in reality none could be. My image is black and white, his is in color.

If indeed he has used my photograph I am not amused. How do you think I should proceed with this? Do I write him a letter asking for clarification, or go directly to attorneys (which I'm willing to do)?

[Jay DeFehr]

Richard, if your photo did indeed inspire his painting, why should you be upset? I would be flattered.

[Bob McCarthy]

Don't be hasty, the legal industry always gets its piece, no matter the circumstances. If it's a common landscape, maybe he used the same tripod (easel) holes you did.

If it includes temporal things like people, I'd say you have him dead to rights, but would still contact him before throwing money at legal representation.

Its tough to win these sorts of things.

bob

[GPS]

Good grief! A good cold shower would do... :rolleyes:

[Scott Walker]

I would call the guy on it before spending time and money on a lawyer

[BrianShaw]

Is it possible that he put his easel in your tripod holes?

[GPS]

At a second thought - it is quite an achievement to get his painting - inspired by your picture - exhibited, don't you think..?;)
Maybe you should pay him for that?

[Caivman]

Print up an exact sized print from your negs and take it to his expo. Stick it up on the wall with some sticky-tac/blu-stuff and enjoy his reaction.

[Bruce M. Herman]

First, verify just how similar his painting is to your photograph. As suggested by a previous writer, identical temporal content contributes significantly to your argument. Beyond people, the time f day and season are also considerations. A polite inquiry of the artist would be a next step. He may not be aware of copyright law (not likely, though). You should decide what you want to charge for his usage prior to the call so that you are fumbling around during the conversation. Look to the ASMP web site for some ideas on what might be a reasonable fee. Keep in mind that it's negotiable, but generally you should not allow usage for free. If the artist isn't selling his/her work, you should still plan to charge something, even if it's $25 or so.

To those who think this is something that you should view as a compliment, I'd ask this - how do you derive your income? Are you willing to work for free at whatever you do? Perhaps you're still living with your parents, but for those of us making our living or part of our living by selling our art, the concept of folks giving away their art makes no sense.

[Scott Walker]

Is it possible that he put his easel in your tripod holes?

That could happen, I recently came across an image that at first glance I thought to be mine being displayed by a well known photographer. Turned out that he had arrived at the spot about 3 years before me, we just happened to compose an almost identical image at about the same time of year and day. His image was dated 1988 and mine 1991. Fortunately I never tried marketing my image so there will never be a conflict.

[Jay DeFehr]

Bruce,

Regardless of how I earn my living, the obvious question is; how does inspiring a painter damage a photographer? Richard hasn't given anything away, including his art. I think Richard is a talented artist, and I wouldn't be surprised to know he inspired other artists, just as he's likely been inspired by other artists. Where is the damage?

[cyrus]

Even if he used your photo as a basis for his painting, "Almost direct copy" may not be enough. If he's added elements and color etc. that's not really a copy of your photo anymore.

[Ed Kelsey]

How could you prove he copied yours?

[Brian C. Miller]

Here's the problem: Is it monetarily worth the return on investment of legal pursuit?

There was a case (I think it was posted in the Business section) where an artist derived a painting from a photographer. The photographer sued and won. The photographer's image had been used directly, with some modifications.

Give the painter a call, and see what he says. He may actually have visited that site. From a brief browse of your website, the picture is one of the Chicago river series, right? Is the spot an obvious choice? I've found that a lot of spots are obvious, when somebody is looking for the best view.

The painter would have to admit to using your photograph for reasonable legal pursuit. Otherwise the cost of prosecution could easily exceed the damages awarded.

[Kirk Gittings]

IF this was done at an easily accessible spot frequented by the public I think you are SOL. How would you prove he painted it from your photograph? How would you prove he didn't paint it before your photograph?

Speaking for myself only, unless such proof is rock solid, I think this would be a huge distraction (with no upside) from what is most important-continuing my work.

I had a somewhat related problem. A local framer was dismembering one of my books, and matting and framing the pages and selling them at a decent price. I went crazy over this even tough the legal precedent allowing for them to do this was long established and I wasted allot of time and money wringing my hands over this. I ultimately decided to move on.

[BarryS]

It sounds like it's almost certain the artist copied your work, but I'd agree you have very little to gain and a lot to lose from a lawsuit. Are you familiar with the AP case against Shepard Fairey (http://articles.boston.com/2011-01-15/ae/29335296_1_shepard-fairey-obama-hope-obama-image)? If AP had such a difficult time time proving what I see as obvious infringement, there's no reason to think you won't run into the same issues. I'd contact the artist, state that you consider his usage as a copyright violation and request that he refrain from doing so in the future.

[ViewCameraNut]

I have let several artists paint my photos with the stipulation I get credit, however they did ask for approval. The artists were exellent, but not famous by any means. A friendly letter or phone call could go a long way in resolving the matter before you try going the legal route. Best of luck, Mike C.

[Richard Wasserman]

I have calmed down a bit....

I was really angry that a project I have spent so much time, energy, to say nothing pf money on, was copied by an "artist" who appears too lazy to leave the house to look for subject matter. Judging from the work he shows on his website, I am not the first photographer he was "INSPIRED" by. It's true that he may have altered my image enough that I won't be able to prove anything, but at the least I want him to know that I am aware of what he has done, and my feelings about it. What good are copyrights anyway? And what about intellectual property? My feelings of course would have been very different if he had asked permission.

I'll send him a nice letter.

[cyrus]

Oh, copyrights can be surprisingly "good" especially if you've registered them - in which case you're entitled to obtain damages regardless of whether you incurred any actual loss, as long as you can prove infringement

[Richard Wasserman]

Oh, copyrights can be surprisingly "good" especially if you've registered them - in which case you're entitled to obtain damages regardless of whether you incurred any actual loss, as long as you can prove infringement

It seems as if proving the infringement is the hard part.

[Greg Lockrey]

Let's see the two pics....

[Mark Stahlke]

Let's see the two pics....Please.

[ic-racer]

It has come to my attention that a painter who lives in another state has a painting that he has exhibited that looks to me like an almost direct copy of one of my photographs that I have up on my website. The composition is identical as well as the aspect ratio. The painting depicts the scene at a different time of day, and he added part of a tree where in reality none could be. My image is black and white, his is in color.

If indeed he has used my photograph I am not amused. How do you think I should proceed with this? Do I write him a letter asking for clarification, or go directly to attorneys (which I'm willing to do)?

Seems like a picture I took in the 1970s. How should I proceed...

[Steve Sherman]

FWIW, This has happened to me on two different occasions with two different images of mine.

As you Richard, at first I was really irate, especially because the offenders were casual friends and do in fact regularly exhibit their work.

As time passed, I began to think, flattered to a degree but mostly I felt sorry that the photog completely missed the experience of creating something unto themselves.

I would not concern myself with negatives experiences and people who run in that circle.

2 cents, Steve

[Frank Petronio]

I'd write them a letter, very diplomatically but firmly and not expressing any approval, asking them what is going on?

Unless they have the resources to settle for a decent amount, there isn't much for you to personally gain but you would be doing a service to every other photographer to discourage it.

[cyrus]

If youve registered a copyright proving infringement is pretty much the only hurdle. How hard it will be depends on how similar the works are, which is a judgment call. BUT more importantly you dont have to prove that you crrated the work first, which can be difficult, or that you suffered actual damages, which can be impossible.

[Leigh]

Unless there's something extremely unique and unusual about your image, it would be virtually impossible to prove that his rendering was derived from your photo,

After all, you stood in a particular place and saw an image.

Anyone else standing there would have seen the same thing.

Given the interpretive latitude of a painting, I think proving that his is yours would be almost impossible.

- Leigh

[ROL]

How do you think I should proceed with this? Do I write him a letter asking for clarification, or go directly to attorneys (which I'm willing to do)?

Hmm... maybe have a look here (http://www.rangeoflightphotography.com/pages/photo-business#copyrighting) or here (http://www.rangeoflightphotography.com/pages/webmarketing#netproofing) first.

[Caroline Matthews]

It's good to have a place where you can get free legal advice from real experts. Just remember: you get what you pay for.

[Kirk Gittings]

BUT more importantly you dont have to prove that you crrated the work first

Hmmm.......how could he have made the painting from his photograph if the photograph was not made first? I would think that was step one if you wanted to pursue something legally.

[Ronan87]

I'll chip in a little something...

My better half is a painter. BA from one of the best art uni in London, she makes a living from it, etc etc etc.

In her carrier she encounter (not to her but to artist friends) a couple similar situations.

To make it short, you won't see a penny unless the painting is EXTREMELY similar (we are talking view angle, people, time AND year, etc).

If he DID use your picture as reference/inspiration, consider him an admirer.

This would be like being sued by the park keepers for taking a picture of their flower bed they arranged...

Cheers.

[Bill Burk]

Two quick cheerful thoughts.

Shortly before I took one of my favorite photos, I spotted an artist packing up her easel and walking away. I don't "think" I took the same scene she painted because I walked further up the trail before stopping. But it was a scene that could have been. Really my great regret that day is that I didn't catch a portrait of her at work which would have been very nice pictorially.

---

I have had the exact same thing happen to me, but in a much nicer way. A photo I took and gave to my dad, he based a watercolor on and gave to me.

[GPS]

...

As time passed, I began to think, flattered to a degree but mostly I felt sorry that the photog completely missed the experience of creating something unto themselves.
...
2 cents, Steve

I agree with one part and disagree with the other of what you say, Steve. I have a friend, a painter with exhibition experience in a big capital city. When he saw my nature pictures he said spontaneously - that would be a great painting! I encouraged him to make one (or more). First, I would be flattered that my photographic expression was strong enough to become inspiration for a painting. Secondly, a well done painting based on a good photograph still needs creative endeavour to make it to a good picture. And finally, if the painting is as impressive as the photograph you can always boast yourself that you have an original photograph, a source of painter's inspiration. The more the painting is glorious, the better for you. :)

[Frank Petronio]

Before you fall for all the nice-nice fluff-fluff blather, consider how you might feel if a famous painter appropriated one of your images and made millions from it:

http://www.aphotoeditor.com/2011/03/19/richard-prince-loses-fair-use-argument/

http://www.aphotoeditor.com/2010/06/11/sam-abells-cowboy-photo-for-sale-again-not-by-sam/

http://www.aphotoeditor.com/2008/06/27/photographers-should-embrace-richard-prince/

Granted the painting in question here probably doesn't have that potential, but if we don't at least make an effort to act upon our beliefs and principals, how can we complain or defend ourselves later when someone exploits us?

[Wayne]

It has come to my attention that a painter who lives in another state has a painting that he has exhibited that looks to me like an almost direct copy of one of my photographs that I have up on my website. The composition is identical as well as the aspect ratio. The painting depicts the scene at a different time of day, and he added part of a tree where in reality none could be. My image is black and white, his is in color.

If indeed he has used my photograph I am not amused. How do you think I should proceed with this? Do I write him a letter asking for clarification, or go directly to attorneys (which I'm willing to do)?

What is the location? Is it some out of the way place that you trudged miles through horsefly infested muskeg to get to, or is it a well known or easily accessed site that anyone could find?

[GPS]

Before you fall for all the nice-nice fluff-fluff blather, consider how you might feel if a famous painter appropriated one of your images and made millions from it:

...

You didn't get the point, I see. If a famous painter used one of my pictures to paint a famous painting even more so could I boast being its inspirational source. And if he made millions from it? Good for him, it was his work to paint it, not mine. What you don't get is that making a famous painting is one thing and having an inspirational source is a different one. With your logic a painter painting your garden would need your permission to make a famous painting of it? Think before you start to write. ;)

[vinny]

The way our justice system works, I wouldn't be suprised if he ends up taking YOU to court and winning.

[Greg Lockrey]

Seems like a picture I took in the 1970s. How should I proceed...

Copyrights are good for 7 years unless you pay to renew them and if you paid in the first place.

[jnantz]

"improving" other people's work ...
has been going on since the beginning of time ....
from what i remember, its what made dizny what it is today ...


=====





Copyrights are good for 7 years unless you pay to renew them and if you paid in the first place.


copyright protection lasts 70+ years past the creators death ...
and we can thank uncle walt for that too !

[Frank Petronio]

You didn't get the point, I see.

Nope I don't. Even if I didn't have a case or the painter was a minor league amateur, they deserve a verbal lashing for being a jerk.

[GPS]

And if a poet sees your picture and writes a beautiful poem about it, what would he deserve for it? :confused: Not to speak about the famous painter who painted your house and got rich on that painting... Eh, I wish Mona Lisa could claim a part of the Leonardo's riches for the inspiration she gave him. After all it was entirely her own face he painted...:)

[Greg Lockrey]

And if a poet sees your picture and writes a beautiful poem about it, what would he deserve for it? :confused: Not to speak about the famous painter who painted your house and got rich on that painting... Eh, I wish Mona Lisa could claim a part of the Leonardo's riches for the inspiration she gave him. After all it was entirely her own face he painted...:)

and what about the lighting man.... the real unsung hero

[GPS]

I would give him 40%... what the heck.

[Greg Lockrey]

I would give him 40%... what the heck.

I'll take it! :)

[GPS]

On a more serious (?) note - I knew a student who was painting architectural scenery (a famous town) in fantastic paintings, different techniques. He was selling them on streets in the town like hot cakes to tourists. When I asked him how he does it (he didn't paint on the street) he laughed, took a dozen of postcards and showed them to me - his inspiration.
No, we don't own rights to the scenery we photographed. Even a painted copy of a famous painting, if sold under your name, is not illegal. Is just that - your painting of somebody's else painting.

[Richard Wasserman]

Well, here it is a new day and while I'm still not pleased I realize there is not much I can realistically do about it.. What are the odds that a painter who lives 1500 miles from here found the exact location where I had been, and used a 4x5 camera with a 300mm lens to make the exact same composition that I did?

I appreciate everyone weighing in on this, I never realized that copying someone else's photographs is an acceptable practice in painting. It may be legal, but it doesn't seem right to me, but of course I'm the photographer being copied.

I will be writing him a letter expressing my views, and I'll even send him a post card from a show announcement that used that image. He can put it in his scrapbook.

[GPS]

...
I appreciate everyone weighing in on this, I never realized that copying someone else's photographs is an acceptable practice in painting. It may be legal, but it doesn't seem right to me, but of course I'm the photographer being copied.
...

Richard, there is the fault in your logic - it is painting, not copying! If you compare the two results you see the difference, as you could see if you compare his painting with a real copy of your photograph. He painted - not copied - your photograph. Was he not allowed to? Why not? You own the scenery of 8x10 with 300mm lens perspective?

[Marko]

And then there is that pesky little concept called "transformative", mentioned in the copyright law.

Many copyright holders, especially photographers it seems, would like to wish it away, but so far even Mickey Mouse was unable to completely remove it.

Here is an unrelated question: How does the value of all your time spent so far on this compare to the realistic market value of your photograph?

Or to put it another way: could you possibly have created another photograph of the same value using all this time and energy?

[Richard Wasserman]

Richard, there is the fault in your logic - it is painting, not copying! If you compare the two results you see the difference, as you could see if you compare his painting with a real copy of your photograph. He painted - not copied - your photograph. Was he not allowed to? Why not? You own the scenery of 8x10 with 300mm lens perspective?

But my photograph is not the scenery. It is my interpretation of what I saw.

Also, what if, as it looks to me, he made a print of my image and then painted over it? Sort of paint by numbers.

[GPS]

But my photograph is not the scenery. It is my interpretation of what I saw.

...

And his painting is not the photograph. It is his interpretation of what he saw - on your photograph...:)

[Bill Burk]

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.

[Richard Wasserman]

And his painting is not the photograph. It is his interpretation of what he saw - on your photograph...:)

I see your point, but I still don't like it.

Time to move on I guess...

[Marko]

But my photograph is not the scenery. It is my interpretation of what I saw

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. ;))

[Frank Petronio]

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.

[GPS]

I see your point, but I still don't like it.

Time to move on I guess...

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... :)

[Jay DeFehr]

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.

[GPS]

...

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.

To each his own. Frankly, I have no illusion about your taste...:)

[rdenney]

Copyrights are good for 7 years unless you pay to renew them and if you paid in the first place.

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

[Chuck Kimmerle]

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.

http://www.richardwasserman.net/UserImages/13/11347/1/158656_extralarge.jpg

http://www.chuckkimmerle.com/images/091111_CornRowsShelterBelt_0003a.jpg

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

[GPS]

...
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.
...
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...;)

[Greg Lockrey]

Where did you get that idea?


Rick "not a lawyer" Denney

I'm confusing it with a patent I guess.... my mistake. I have a client who is religious about getting his copyright the "real" way. I may have misheard him about the rules.

[Chuck Kimmerle]

I think I would need a bottle of Walker to see these 2 pictures as a copy of each other...;)

Didn't mean to imply they were copies, but rather alike in overall composition. Considering that the Richard's case was a photo vs. a color painting with added elements (thus, not exact copies), I thought these two images were somewhat relevant. Besides, it's never too early to drink.

[rdenney]

I'm confusing it with a patent I guess.... my mistake. I have a client who is religious about getting his copyright the "real" way. I may have misheard him about the rules.

No worries.

(But patents were originally 14 years. They changed to 17 years in 1861 and 20 years in 1995. They were renewable for one additional 7-year term between 1835 and 1861--maybe your client is a historian.:) )

Rick "who long worked for a company that took IP very seriously" Denney

[Richard Wasserman]

I think this is all getting a bit blown out of proportion. I was initially upset when I found what looked like a copy of one of my images and thought it wasn't the right thing for a painter to do. I now know otherwise and am trying to be flattered instead. I think my writing sounded stronger than I actually felt. This would have been a much better conversation face to face, over a beer or two. I guess we all find our own inspiration where we can. My health is fine, I haven't lost any sleep over this.

[Kirk Gittings]

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.

http://www.richardwasserman.net/UserImages/13/11347/1/158656_extralarge.jpg

http://www.chuckkimmerle.com/images/091111_CornRowsShelterBelt_0003a.jpg

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

Some stunning work on your site Chuck.

[Greg Lockrey]

No worries.

(But patents were originally 14 years. They changed to 17 years in 1861 and 20 years in 1995. They were renewable for one additional 7-year term between 1835 and 1861--maybe your client is a historian.:) )

Rick "who long worked for a company that took IP very seriously" Denney

Methinks it's pharmacy patents that are 7 years.... too many rules and regulations to keep up with.

[jnantz]

SNIP



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.



that is how atget started out ... a failed painter who took up photography to sell stock photography
to painters ...

[Greg Lockrey]

I think this is all getting a bit blown out of proportion. I was initially upset when I found what looked like a copy of one of my images and thought it wasn't the right thing for a painter to do. I now know otherwise and am trying to be flattered instead. I think my writing sounded stronger than I actually felt. This would have been a much better conversation face to face, over a beer or two. I guess we all find our own inspiration where we can. My health is fine, I haven't lost any sleep over this.

While I was in the Navy stationed in Charleston, SC, I was photographing over the Navy yard at the sunset and happened to capture a shot of a jet passing through the sun and looking like a "Peace" sign. That was 1972.... now how many more "Peace" signs were shot since then?

[Greg Lockrey]

SNIP




that is how atget started out ... a failed painter who took up photography to sell stock photography
to painters ...

I went the other way.... a photographer who could sell more of my scribbles with paint and found out there was a market for prints... now I print for about 125 artists. ;) ;)

[evan clarke]

I made a photograph of a distinctive tree in a National Park im North Carolina some years back and had to hike to do it. Last year, I came across a painting of the same tree which was dated before I made the neg..everybody has access to the world...ec

[Ronan87]

Well, here it is a new day and while I'm still not pleased I realize there is not much I can realistically do about it.. What are the odds that a painter who lives 1500 miles from here found the exact location where I had been, and used a 4x5 camera with a 300mm lens to make the exact same composition that I did?

I appreciate everyone weighing in on this, I never realized that copying someone else's photographs is an acceptable practice in painting. It may be legal, but it doesn't seem right to me, but of course I'm the photographer being copied.

I will be writing him a letter expressing my views, and I'll even send him a post card from a show announcement that used that image. He can put it in his scrapbook.

It's accepted for a lot of things, nothing wrong with it...

Imagine if no one could improve/be inspired by others.

We would still be in caves.

Also you haven't answered everyone asking the question, what makes you own that view? If it isn't your private property, you have no rights on it.

[Wayne Crider]

Why not send him a letter and tell him that you appreciate the fact that he considered your photography so good that he painted the scene, and that you have more great images available for X amount should he decide to want to emulate your work again. Attach an excerpt from the copyright law which states your lawful position and a bill for an 8x10 painting for payment, in lieu of a $300 dollar an hour lawyer expense to defend himself. You don't have to pursue it, just make him think a little.

[Merg Ross]

I think this is all getting a bit blown out of proportion. I was initially upset when I found what looked like a copy of one of my images and thought it wasn't the right thing for a painter to do. I now know otherwise and am trying to be flattered instead. I think my writing sounded stronger than I actually felt. This would have been a much better conversation face to face, over a beer or two. I guess we all find our own inspiration where we can. My health is fine, I haven't lost any sleep over this.

So far, this is the most sensible response. Consider your experience as a form of flattery.

I raise a pint to your health; carry on with your good work, it is much more important than this diversion.

[Marko]

Here's one lawyer's take on cases similar to this (http://www.lextechnologiae.com/2011/08/19/photography-copyright-rihanna-and-why-we-need-a-bright-line-rule/).

[Ronan87]

Here's one lawyer's take on cases similar to this (http://www.lextechnologiae.com/2011/08/19/photography-copyright-rihanna-and-why-we-need-a-bright-line-rule/).


IDEAS, AS A MATTER OF LAW, CANNOT BE COPYRIGHTED AND THEREFORE CLAIMS FOR INFRINGING IDEAS SHOULD BE DISMISSED UNDER RULE 12(B)(6)


So people know.

[Steve Smith]

So far, this is the most sensible response. Consider your experience as a form of flattery.

Agreed.

Richard should post on Photo Net and get multiple responses stating that he should immediately hire a lawyer and sue for millions!


Steve.

[akfreak]

Be gald you arent this poor guy. The stolen scream (http://www.youtube.com/watch?v=A5lEMIf7_FM). (a YouTube video) . I have talked to many lawyers involving copyright infringement. If you did all your paperwork correctly and he is not illegally using your work (fair use for not for profit) then you are going to loose. Pretty simple really.

First time copyright laws and photography was mentioned together was 1865. It is in the constitution, copyright is a bundle of rights. Intellectual property is wonderful, lets begin.


Here are your written rights
1. You have the right of reproduction. You control the how and when images are reproduced. You allow use only.

2. Right of derivatives. (this is where your guy may be in trouble). No one cannot ever make any derivatives, versions, or anything that contains any part of your image. You determine if anyone can use or change your images. There is Never a % of change. It is a common man test used to determine a violation.

3. Right of distribution. You and only you determine where it is used, like only in trade, or on the web, or on television. However you must do your paperwork correctly.

4. Right of Performance ( not really for Photographers but dancers, actors, ect.., ect... performers)

5. The Right of display. You have the right how your work can be displayed. Color, B&W, cropped only.


6. An Unwritten Right, you can always say NO, it is a right just as any of the other rights you have I listed above. "Only" is also a key word, you need to use at the end of sentences when you do your paperwork. It makes sure they are clear of how you are licensing you work to them.

Most important, you must register your images, if you dont, you will hamper your ability to fight infringement cases.

If you register you have a right, a big one, the Right to SUE. If you dont register each image, you cannot SUE. You cannot go to small claims court if you do not register, here is why. Copyright laws fall under the the constitution, it is a federal law.

People are breaking Federal laws if they infringe your rights ( as I described above). You have to go to Federal Court to have a case heard for copyright infringement. So, No Register, No Sue! So without paying the fee to register an image to the federal government, you Cannot Proceed and will be thrown out of court.

If infringed;
Now you have to prepare a complaint, a lawyer will have to do this ( an intellectual property lawyer, it is a federal case and that venue is much different than local and state courts) and can only be done if you are registered, in a timely manor. This will also be heard by the Judge when was it registered. Time of registration and when infringement takes place are huge factors. They need this information so the court can determine compensatory damages.

It goes on and on, I have been dealing with it for decades. Like if your image is registered you can recover your lawyer fees, this is like going to a casino and playing with the houses money. Injunctions are another thing that will dive an infringe to take it down and or start the bargaining. Leverage factor is also a right, if lets your lawyer make a deal for you so you dont have to go to court. So you can make a settlement.

Without registration you do not have these rights, if you contact the thief you have no way to pressure him without spending your own money. If you are registered then you got him by the balls.


I have a great lawyer that will handle your case if you are registered. It is clean and cut. I wont stand for it, I never post my work online. I use flicker for forum image posts, ones I dont care for. Every image I have in my portfolio is registered.

Do you know how to send and register an image to the copyright office.? When I do it I re size my stuff to a small size jpeg, big enough for a judge to see the image. Also when you upload it , it becomes public record. I create an action action in Photoshop and or lightroom to re size and set the inf for the copyright office.

Mine info the the CRO is

Copyrighted (Never Public Domain, Never)
(symbol= Alt 0169) My name, year
ALL RIGHTS RESERVED
No rights granted unless in writing by, my name.
then the copyright URL

Then go to the Copyright office at the Library of Congress. Anyone else's website is a scam and they are trying to get money for doing for you what I am showing you for yourself. You need no help from anyone go to www.copyright.gov not .com. dot com is a scam and going to charge you a fee on top of the gov fees.

Read the FAQ, or if cartoons are your thing watch the Taking the mystery out of copyright. (note if on a MAC you cant register with safari, on a PC use IE or it wont work, only when registering) You can browse the website with any browser. You want to find the electronic copyright office. It is cheaper, faster and no paperwork.

Here is the best part. for $35 tax deductible dollars you can get an application to register one or as many images you want. I have applied for in a single application over 5,000 images, it was 35 bucks. Paper registration can take a year or more. electronic registration takes 3 months and is effective they date they get everything not when you get the paperwork back. Remember you cannot go to court without paperwork in hand. Again it is federal court, not small claims. You can pay by CC and I recommend this way so you have a record to show the date you registered. Not just their word. Also you can burn and mail in a dvd, but the upload is a much better method, because that is the effective registration date.


You will have to register and make an account so you can get a username and a password. Be sure to set the browser defaults based on their info. (watch the power point on how to register).. The first time is hard to figure out, but now I can do it in a few mins, the upload of the images takes the most time. Lastly every time you register it is filing a claim. Create a temple, complete the application, make a payment, then submit your work. All done.

Lastly, prey some big company uses your image in an infringed way. Prey some jerk try's to use any portion of your images, you will have him by the balls!


I hope I didn't go off the deep end here, I was late to this thread, I felt the need to make up lost ground. I am real tired 1:27 am here at home, I am out, AKf

[akfreak]

Sorry I had to respond to this " IDEAS, AS A MATTER OF LAW, CANNOT BE COPYRIGHTED AND THEREFORE CLAIMS FOR INFRINGING IDEAS SHOULD BE DISMISSED UNDER RULE 12(B)(6"

Ha! That is a riot!

[GPS]

Be gald you arent this poor guy. ...

2. Right of derivatives. (this is where your guy may be in trouble). No one cannot ever make any derivatives, versions, or anything that contains any part of your image. You determine if anyone can use or change your images. There is Never a % of change. It is a common man test used to determine a violation.

...

I hope I didn't go off the deep end here, I was late to this thread, I felt the need to make up lost ground. I am real tired 1:27 am here at home, I am out, AKf

Richard,
I just hope for you you'll not be enough fool to take this guy seriously for a single minute.

Imagine a tourist taking a photo of Egyptian pyramids. Imagine a painter painting the same view from the photo. Now imagine the tourist going foolishly to a layer to sue the painter for making "the same" painting as his photo... You get the point. Give yourself one more beer and send this self appointed layer where he belongs. Have a good day!

[Richard Wasserman]

I actually had a serendipitous chance to see the painting last night. It is very similar to my photograph, but whether or not he worked from my image—who knows? I have moved on to more important matters (like what to have for breakfast), and realize that I at first over-reacted, now I find it a bit amusing. Except that this small painting had a price tag of $3400.00. When do I get to charge $3400.00? I assume I will at least need to die first....

[GPS]

...
I assume I will at least need to die first....

That's a good idea! It definitely stops the worries...

[BrianShaw]

Except that this small painting had a price tag of $3400.00.

The painting was still for sale, wasn't it? ;)

[Richard Wasserman]

The painting was still for sale, wasn't it? ;)

Very true! I didn't mind....

[Steve Smith]

Most important, you must register your images, if you dont, you will hamper your ability to fight infringement cases.

But only in the US. Other countries don't bother with registration as you can prove ownership in other ways... such as having the negative.

And don't forget that it is possible (but obviously illegal) to register someone else's image as your own so registration is not always absolute proof of ownership.


Steve.

[Bruce M. Herman]

The painting is for sale for a significant sum.

It's your call whether to pursue this, but this has happened to me and I did receive remuneration. In my case, a magazine authorized a painter to make renditions of photographs that I had submitted. It then published the paintings. I learned this from the photo editor whose objections had been over-ruled by the editor. I threatened legal action after my polite letter was ignored. After some discussions, received the same payment that I would have received had my photographs had published.

If you value your rights as an artist, and IF you truly believe that your copyright has been infringed, you should try to resolve the issue even it's only to make the artist aware of your feeling that your has been misappropriated. The more often we are quiet, the more often it will happen.

[Ronan87]

Sorry I had to respond to this " IDEAS, AS A MATTER OF LAW, CANNOT BE COPYRIGHTED AND THEREFORE CLAIMS FOR INFRINGING IDEAS SHOULD BE DISMISSED UNDER RULE 12(B)(6"

Ha! That is a riot!

Why? The law is the law, right? :p

[rdenney]

But only in the US. Other countries don't bother with registration as you can prove ownership in other ways... such as having the negative.

And don't forget that it is possible (but obviously illegal) to register someone else's image as your own so registration is not always absolute proof of ownership

As I said in my review, registration merely changes who has the burden of proof on several matters. It does not fundamentally affect the owner's rights. And you are correct that registration can be overturned, it's just that the person seeking that now has the burden of proof to show their work was infringed by the registrant. Again, it only affects who has the burden of proof.

If the painter made his painting while looking at Richard's image on his computer monitor, then he infringed Richard's copyright, and that's true even if he painted an extra tree and changed the lighting. And the reason that is infringement is because the painter indeed copied Richard's work, and only Richard owns the right to copy (hence, copyright).

Even if he had Richard's photo on his monitor, the painter might still avoid infringement by creating a transformative work that does not affect the marketability of Richard's original.

So, the problem is not Richard's rights, but what Richard would have to prove to enforce those rights. Many are arguing that Richard should not have those rights, but that is not relevant in that Richard indeed has those rights even if some think he should not. Having a beer instead of taking expensive legal actiion is an investment in one's peace of mind, but it is not an investment in rights enforcement.

So, Richard, if you believe that he had your photo displayed on his monitor when he made his painting, you should write a polite letter and show some effort to challenge him, at least to demonstrate that you are willing to enforce your rights to a reasonable extent. Even if you do nothing else, that will keep some future and more obvious infringer from undermining your rights by showing that you were not willing to assert them.

Rick "noting a confusion of agendas" Denney

[Richard Wasserman]

So, Richard, if you believe that he had your photo displayed on his monitor when he made his painting, you should write a polite letter and show some effort to challenge him, at least to demonstrate that you are willing to enforce your rights to a reasonable extent. Even if you do nothing else, that will keep some future and more obvious infringer from undermining your rights by showing that you were not willing to assert them.

Rick "noting a confusion of agendas" Denney


I'm working on a letter as we speak. I don't really expect to get any results from it as I think a good argument can be made that the painting is "transformative". But I do want him to know that I know what he did and my dis-satisfaction with him, and what I see as his abuse of my copyright.

[Jay DeFehr]

If the painter made his painting while looking at Richard's image on his computer monitor, then he infringed Richard's copyright, and that's true even if he painted an extra tree and changed the lighting. And the reason that is infringement is because the painter indeed copied Richard's work, and only Richard owns the right to copy (hence, copyright).

Hi Rick,

I guess we know how you'd rule if you were judging this case, but I'm not sure the law is on your side here. If you copy something, you have more than one of it; copy a photo, you get two photos, etc. Painting a monitor image of a photo represents several degrees of abstraction from the original work. After all, it's not illegal to copy a jpeg of a photo to create a copy jpeg, so how are you so sure a copyright protects against the painting of a jpeg of a photo? I don't think Richard's rights regarding the suspect painting are nearly as clear cut as you claim, even if he could prove the painter did as you suggest, which, of course, is an open question.

[Marko]

I'm working on a letter as we speak. I don't really expect to get any results from it as I think a good argument can be made that the painting is "transformative". But I do want him to know that I know what he did and my dis-satisfaction with him, and what I see as his abuse of my copyright.

OK, I think this is a logical question:

If a good argument can be made that his painting is indeed transformative, than how exactly does that constitute an abuse of your copyright and what is the purpose of the letter?

[Jay DeFehr]

Richard,

How can you be so sure the painter based his painting on your photo? I don't think I could accuse a fellow artist of misappropriation without rock solid proof.

[Frank Petronio]

The painting is for sale for a significant sum.

It's your call whether to pursue this, but this has happened to me and I did receive remuneration. In my case, a magazine authorized a painter to make renditions of photographs that I had submitted. It then published the paintings. I learned this from the photo editor whose objections had been over-ruled by the editor. I threatened legal action after my polite letter was ignored. After some discussions, received the same payment that I would have received had my photographs had published.

If you value your rights as an artist, and IF you truly believe that your copyright has been infringed, you should try to resolve the issue even it's only to make the artist aware of your feeling that your has been misappropriated. The more often we are quiet, the more often it will happen.

Thanks for interjecting some fact and real experience. In this case it is probably moot but I'd hate to see someone in a situation like you had back away pursuing from a clear case of infringement because of some of the opinions expressed by a vocal few.

[Jay DeFehr]

Frank,

If you're including me in "the vocal few", don't apply my assessment of Richard's case to Bruce's. Bruce's case is quite clear cut, and I would be happy to see punitive damages awarded in his case. Richard's case, however, is a different matter.

[Richard Wasserman]

Richard,

How can you be so sure the painter based his painting on your photo? I don't think I could accuse a fellow artist of misappropriation without rock solid proof.


Maybe my emotions are still running higher than I thought—I'll sleep on it.

Thanks Jay.

[akfreak]

Richard,
I just hope for you you'll not be enough fool to take this guy seriously for a single minute.

Imagine a tourist taking a photo of Egyptian pyramids. Imagine a painter painting the same view from the photo. Now imagine the tourist going foolishly to a layer to sue the painter for making "the same" painting as his photo... You get the point. Give yourself one more beer and send this self appointed layer where he belongs. Have a good day!

WOW, nice response. "Take me seriously". I only offer the Facts, not what I think, not what I want to think, just the facts.

Lets use your example, you go to a spot in the desert, you make a picture of the pyramids and then you register that image. Then some person uses that image for whatever purpose maybe the colors. Maybe the composition, maybe a red shoe that is in the foreground, or a Camel in front of the Pyramids, or a guy picking his nose, a bird sitting on top. If anything can be identified as being your registered image you have been infringed upon and have a case.

However and this I thought this would not require discussion, one must make sure you are not making images of already registered objects without permission, many Hollywood movie makers get sued for using depictions of statues, sculptures, ect... that show up in a movie.


Also there is a term you should know, it is called "Fair Use" A video here (http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-video) of video remix (very similar to what you are speaking of. If you are looking to cite “fair use” as a way to publish copyrighted images without permission because you believe it falls under the following:”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” then you should follow best practices.

There is a code of practice for fair use for photography, Check it out.

I really dont want to get into a pissing match, but I really dont appreciate your nasty little tone, I only offered up facts, you offer nothing more than to try and make me look stupid. I am not a self appointed anything, I do however have a great IP lawyer, I also have done lots of research about the subject.

Pay a lawyer see what he says, or better yet use the lawyers at PPA, as much of a professional photographer you are you must have access to someone who knows.

Better yet go here and read and see for yourself (http://www.copyright.gov/help/faq/)

There is no reason to get nasty, the subject is simple in concept but complex as you dive deeper. Thanks God for the US Consitution!

[cyrus]

Richard,
I just hope for you you'll not be enough fool to take this guy seriously for a single minute.

Imagine a tourist taking a photo of Egyptian pyramids. Imagine a painter painting the same view from the photo. Now imagine the tourist going foolishly to a lawyer to sue the painter for making "the same" painting as his photo... You get the point. Give yourself one more beer and send this self appointed lawyer where he belongs. Have a good day!

I think Afreak was making a different point - he was talking about the case where the artist makes a photo/painting of the pyramids, and a second artist steals the first artists' painting or photo and uses it as his own.

You're talking about a different case, where two artists make a painting/photo of the same scenery of the pyramids. In that case neither artist is infringing on the other. (Note however that both of them would be infringing the rights of the artist who designed and created the pyramid itself - if he was still around and if the pyramids weren't in public domain for a few thousand years.)

[akfreak]

I just find it a bit irritating to have someone with little to add based on facts to belittle anyone that is only trying to inform. It doesn't matter if it is directed at me or anyone else. It is just disrespectful and not needed here. Take that stuff to some other troll and flame war forum.

I have always found it pleasant here for the most part. This is one of the reasons, I frequent here so much.

I am not trying to ruin the OP's thread, I really was trying to help explain copyrights, it is a very broad subject and this is why it took so long to just give the basics.

[rdenney]

Hi Rick,

I guess we know how you'd rule if you were judging this case, but I'm not sure the law is on your side here. If you copy something, you have more than one of it; copy a photo, you get two photos, etc. Painting a monitor image of a photo represents several degrees of abstraction from the original work. After all, it's not illegal to copy a jpeg of a photo to create a copy jpeg, so how are you so sure a copyright protects against the painting of a jpeg of a photo? I don't think Richard's rights regarding the suspect painting are nearly as clear cut as you claim, even if he could prove the painter did as you suggest, which, of course, is an open question.

Copyright law applies to tangible expressions, and a web display file is a tangible expression. Copies made as a byproduct of how the web works are not infringements--when one posts on the web such copies of the file are inevitable and are linked to their original display in context. But when someone makes a copy of the file for the purpose of competing with the original, that's another matter. Putting it on his monitor and painting from it is not any different than me photographing my monitor when it is displaying his painting. I suspect he would see that as a violation of his copyright.

Nothing is ever clearcut. But it is absolutely NOT clearcut that anybody who paints a photo is making a transformative work and is not subject to the owner's copyright, and that has been claimed in this thread. I'm not suggesting that Richard take it before a judge. But I think he has a reasonable expectation of copyright protection here and he should at least assert that even if he does not pursue it, so that he doesn't set the precedent that he won't assert those rights.

The painter might also have a reasonable expectation of being in the clear given the transformative nature of his work, too. I'm not arguing against that--I haven't seen the works and my opinion doesn't count in any case. If so, the painter might well write back and say so. Or, he might write back with an apology. Or, he might tell Richard to pound sand. Or, he might ignore it altogether. Or, he might tell Richard that he painted it from nature and he was there on such and such date doing so. In any case, Richard won't fume (at low level, now that he's had his beer) about not taking any action, and the painter won't continue in the belief that he can paint from other peoples' photographs without upsetting them.

Back to the notion that an image on a computer monitor isn't a copy. So, is the picture at right a copyright violation of the picture at left?

http://www.rickdenney.com/images/RWD_playing_Rusk_York.jpg http://i8.ebayimg.com/05/s/07/63/9b/5d_2.JPG

The picture at right appears in an ebay buying guide, written by someone I don't know, who has a statement at the bottom that says "Visit my eBay Store!", and thus is using the article to ask for a sale. Some of the text is also plagiarized from my web article. Notice that the idiot cropped enough off the bottom to remove my copyright notice. I have sent two C&D letters to ebay so far. Now, I have to consider whether to take it to the next level and hire a lawyer. The perp is no longer an ebay user, but ebay won't remove the article, either.

There is nothing transformative here, that's for sure. And there is no doubt about who had the picture first. It's a picture of me, made by my wife at a tuba conference some years ago.

Rick "taking these issues personally" Denney

[Steve Smith]

Note however that both of them would be infringing the rights of the artist who designed and created the pyramid itself - if he was still around and if the pyramids weren't in public domain for a few thousand years.

No they wouldn't as the only way to infringe the copyright of a building is to produce a copy i.e. an identical (or very similar) building, not a picture of a building.


Steve.

[Steve Smith]

Now, I have to consider whether to take it to the next level and hire a lawyer. The perp is no longer an ebay user, but ebay won't remove the article, either.

The main consideration should be: Have you suffered any loss to make it worthwhile and is any settlement likely to be large enough to cover a lawyer's fees?


Steve.

[rdenney]

The main consideration should be: Have you suffered any loss to make it worthwhile and is any settlement likely to be large enough to cover a lawyer's fees?

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney

[GPS]

I think Afreak was making a different point - he was talking about the case where the artist makes a photo/painting of the pyramids, and a second artist steals the first artists' painting or photo and uses it as his own.

You're talking about a different case, where two artists make a painting/photo of the same scenery of the pyramids. In that case neither artist is infringing on the other. ...

If that were the case then his point had nothing to do with Richard's case. The painter did not steal Richard's photo to use it as his own. He made a painting that resembles Richard's photo, partially... Did he make it from the photo or from the scene? Who knows.
And no, I was talking about a painting done with a photo used as a model of the painting. As the scene is public and thousands see it and take pics of it their pictures (or paintings) are similar. Go and sue them because your picture of pyramids/Moon over sea line/Sun reflected in water etc. looks like yours...
The common sense is the first thing that must be used here. And that's also Richard's dilemma - will he use it or will ha fall victim to a vision of paragraphs used in "his" famous case? :)

[cyrus]

If that were the case then his point had nothing to do with Richard's case. The painter did not steal Richard's photo to use it as his own. He made a painting that resembles Richard's photo, partially... Did he make it from the photo or from the scene? Who knows.

No, I believe that Richard is under the suspicion that the fellow used his photo as a model, not that they both used the same scenery as a model. I may be wrong though but that's what I got from reading the thread thus far. Afreak's point was about that case too.

[cyrus]

No they wouldn't as the only way to infringe the copyright of a building is to produce a copy i.e. an identical (or very similar) building, not a picture of a building.


Steve.

This is true in ANY sort of copyright violation - the copy has to have some degree of similarity with the original. If the "copy" is not similar to the original then there is no infringement.
But yuo're right -- buildings are a bad example because there are specific laws applicable there that make an exception to copyrighs (There is a “photographer's exception” to a building's copyright owner's rights ) so instead lets say that we're talking about a sculpture instead: someone who paints or photographs a sculpture and sells them is indeed infringing on the rights of the scupltor.

However none of this is relevant to Richard's case because the original creator of the scene that he photographed is not the only who is crying foul. As I understand it in Richard's case, he believes third party - a painter - used one of his photos as a model for a painting.

[cyrus]

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney


If you have registered your work, you are entitled to statutory damages. That's one of the benefits of copyright registration. If you have registered your work, proving the actual amount of damages becomes irrelevant.

[Steve Smith]

I mentioned a photograph of a building not being an infringement of the architects copyright as there have been recent cases of building owners trying to stop people photographing their buildings from public places claiming that it is an infringement of the copyright of the building (which they probably don't own anyway).


Steve.

[Jay DeFehr]

Rick,

That's a fine looking tuba, and you look like you'd fit right in with Goran Bregovich, or Fanfare Ciocarlia. I agree the ebayer's use of your image is dodgy, at best, and I see how you could be offended by it, but not damaged. Is the ebayer cutting into your sales of that image by selling it himself? I don't agree with the ebayer's usage of your photo, but I don't think I'd lose any sleep over it, either. If you feel strongly enough about it to defend the principle of your copyright, you certainly have every right to do so, but if it were me, since there is really nothing more at stake than the principle, I'd let it go, and have a laugh. But then, the principle of a copyright is not very dear to me. In the interest of full disclosure, no one has ever appropriated one of my images, for any reason, as far as I know, so I can't say with absolute certainty how I'd feel about it if someone did. I agree that cropping off your copyright notice was chickenshit.

Rick, I think you're a very reasonable and thoughtful guy, and it's always a pleasure to debate and discuss with you.

[rdenney]

If you have registered your work, you are entitled to statutory damages. That's one of the benefits of copyright registration. If you have registered your work, proving the actual amount of damages becomes irrelevant.

Not the way I read the case law (though I am reading that as a non-lawyer, and I certainly have not read everything that might be relevant). My reading suggests that without registration, it is up to me to prove willful infringement to obtain statutory damages. With registration, willful infringement is assumed and it is up to the infringer to prove that the infringement was not willful.

I have not read anything from a court decision that implies that registration confers new rights.

To Jay: they not only copied the photo, but also a big chunk of the article I wrote that goes with it. It came to my attention because a stranger asked if I was endorsing that seller. That affects my reputation. Also, if I do nothing, I may lose the rights to the article for lack of willingness to assert them. I may write a book about tubas someday, and this material, brief though it is, would be key content. I need a record showing my claim. That principle applies to Richard, too.

The tuba is not mine, alas. I like mine just as well, but it certainly is not as pretty.

Rick "who will be able to prove willful infringement if they don't respond to the C&D demand" Denney

[Jay DeFehr]

Good luck with your case, Rick. Reputation is important, and I wouldn't be very happy to have my endorsement falsified. I hope you get satisfaction.

[akfreak]

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney

It is NEVER a civil mater it is a federal matter and you can sue for attorys fees, It is a free roll. To sue someone for CR infringment is easy speak to a IP lawyer and see if you have a case, if you registetred the image you have him by the short hairs.
I personnaly would never myself write a cease-and-desist letter, I would let a lawyer write a letter, they have a way of getting people motovated to act. They can also act as a mediator and make deals that you could not get done. Here is a great part, Ebay has the article still online and they are using such articcles to drive business to thier site in the hope of generating revenue. Since it is thier site they are resposible for third party actions, you may have a case against Ebay as well.

I would never attempt to contact anyone directly if my image is registered. Why would you ever do that, You are intitled attorneys fees as part of damages, a lawyer wont take a case that isnt clearly infringement. So why bother to do anything. If you want to talk to my lawyer (who does this every day all day) pm me.


I have been there and done that, now I just pray a big store like lowes or ebay infringes one of my images again. Lastly, have you ever used digimark?

[akfreak]

The main consideration should be: Have you suffered any loss to make it worthwhile and is any settlement likely to be large enough to cover a lawyer's fees?


Steve.
As stated before, copyright infringment is a federal matter, if you have a case an IP lawyer will take it in a second (if you have paperwork in hand). The lawyer fees mean nothing,you never pay any, they lawyer takes the case if you have been infringed, if not they dont. So it's like going to a casino and playing with thier money.

Here is the catch your images must be registered, again Must! If not you may as well go thow your money in a toilet because a lawyer will never ever take the case. The reason why is the judge will send you packing as soon as you present your case. A IP lawyer would never go to court unless your images are registerted (at the CO).

Simple stuff guys.

[Chuck Kimmerle]

Here is the catch your images must be registered, again Must!

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

[Ronan87]

12 pages... most over the weekend... seriously guys?...

[BrianShaw]

You see it with your own eyes. What are you doubting? ;)

[cyrus]

I have not read anything from a court decision that implies that registration confers new rights.



Oh it most certainly does! That's why people register their work! However you have to register with a certain time period from date of "publication" (as the term is legally defined) to obtain these benefits:

1- If you register your copyright within 5 years of publication, you become the presumed owner of the work - no need to prove that you created it.

2- If you register your copyright within 3 months of publishing, or before an infringement occurs, are entitled to statutory damages and attorney's fees in an infringement lawsuit. You dont need to prove actual damages.

Statutory damages can be between $750 to $30,000 for each instance of the infringement, as determined by the judge, even if there were no actual damages. If the copyright owner proves that infringement was willful, the court may award statutory damages of up to $150,000 per infringement.

Needless to say, a cease-and-desist letter will be much more scary if you have these things on your side.

And yes, you do have to register your copyright to sue for infringment, or at lease show that you tried to register but were denied by the Copyright Office. You can of course register right before you file the lawsuit, so don't assume that if you haven't registered you work yet then you can never sue for infringement, however if you wait too long from the date of publication before you register, you lose the advantages outlined above. These advantages are not available to those who file for a registration after an act of infringement has occurred.

None of this constitutes legal advice, if you need legal advice consult a duly qualified attorney, yada yada yada...

[akfreak]

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

OK you can go to court and sue anyone for anything. Yes this is true, right or wrong you can sue and take someone to court.
'
Now, since the copyright is under the constitution it is a federal matter, and also if you do not have your work registered (submited to the Copy Right Office, Fees paid to the Treasuery Dept. and the paperwork filed and archived at the library of congress). The moment you step into court the judge is going to ask to see the registration paperwork for claim, if you cannot produce it the judge will order you gone.

Your copyrigt begins at moment of creation, however without registration it isnt worth a bucket of spit. You have no recourse, as a matter of fact you cant even file a case in federal court without registration.

In a nutshell without registration anyones work may be clearly violated but the cost would be so great to persue the case it just isnt worth it unless you have deep pockets.

However is you do register your work you have, basiclly a coat of armor. Read,google, ask a IP lawyer that knows Google Ed Greenberk go to his blog, this is all the man does. He is my lawyer and IMO the very best at it. Dont take my word for anything Ask Ed!!!!!

[cyrus]

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

Yes, registration is mandatory if you want to sue. That doesn't mean that you can't register it right before your file your lawsuit, of course. However you can't sue for infringement until/unless the work has been registered, or you can show that you attempted to register but were denied. If you do file suit without registration, your case will be dismissed.

The important thing here to note: You can register your copyright at any time: minutes, days, years after you create a work. If you register EARLY, AND BEFORE someone infringes, you get additional benefits when/if it comes time to sue (benefits such as a presumption of validity and attorney's fees.)

[goamules]

Easy: go to his exhibition. Carefully position yourself in front of the painting, and take a picture of it.

Seriously, if this is a spot that is publicly accessible, it's sour grapes. How many paintings have been done by sitting at the same overlook that a photographer has used? How many paintings have been done of someone looking at another painting? Can someone walk into a gallery, gaze at Whistler's Mother for an hour, then go outside and paint a replica from memory? It just seems very difficult to inforce.

It also seems like since the painting is a different media from the photograph, it's fairly "removed" from a copy right. Sort of like someone whittling a wooden replica of a really cool new car design parked in front of their building.

This is a landscape right? I skipped the last few pages, did you ever post the two here so we can see how bad it is? I'm not saying it wasn't a cheap, lazy shot, but the world is FULL of those people. Why do you think the labels and packaging of every product at the grocery store are similar? Every box of Slamburger Helper will look just like the box of real Hamburger Helper beside it.

I would just call the guy and briefly tell him what you feel he's done, and ask him not to again. He'll of course move on to something in the open collective commons or something.

[rdenney]

It also seems like since the painting is a different media from the photograph, it's fairly "removed" from a copy right.

It seems to me that photographers are on the forefront of demanding that photography is a bona fide art on equal footing with painting, but then when the question of copyright comes up, we lose faith in our own assertions.

Assuming the guy painted his painting while looking at the photograph, which is, of course, merely an unproved assumption, then he copied it, fair and square. It is no less a copy than if I photograph his painting.

One could photograph a small portion of his painting for a study on his brush technique, or to show in a critical review of his work. Or, one could post the small snapshot in a way that is not usable or marketable as part of that review. Or, one can make low-resolution copies to pass out to the students in the art class that one teaches. Those are examples of fair use.

If a painter makes a painting of another painting, then it is a copy. Try it, and then see if the original painter has a complaint. Of course, all paintings made before 1923 are in the public domain in the U.S., and can be copied without hindrance.

Doing an abstract expression of the original is an example of a transformative work, which are not considered copies in that they do not compete with the original nor do they undermine its value in the market.

But let's turn this around. Let's say that Richard has a gallery show, and by happenstance, another corner of the same gallery is showing the painter's copy. It could easily be assumed that Richard was the one copying the painter's work, and could still possibly cost him a sale. Other potential buyers might think, "I'm not buying a photograph from a guy who copies the ideas of painters." This reaction would fit with the general stereotype of photography as a lesser art than painting, a stereotype all art photographers strive to overcome. It would confuse the market, which is one of the principles when deciding whether a copy is transformative. If the painting really is transformative, nobody will be confused. The outcome is that Richard has lost control of his work, and to prevent that confusion, he might well not be able to show that work in that venue.

Now let's say that Richard made a photograph of the painting, but hides the fact that it is a copy by running it through the "watercolor" filter in Photoshop. Nobody would argue that this is a copy. Photography, with the indexical connection between the camera and the subject, makes it clear what is and is not being copied. Painting doesn't have that clarity, which is why there are those principles built into the law, including the likelihood of market confusion, etc.

But now let's remove the indexical link that would make a photograph of the painting an obvious copy. What if someone painted a still life or some other subject entirely set up by the artist. Now, the photographer sees the painting, and then sets up the exact same scene for his camera. Is that a copy? It's a different medium, so is it automatically transformative in the way a painted copy of a photograph is automatically transformative (as implied by the quoted statement)? Again, let's put both works in the same gallery and see if the painter has a complaint.

In every case, the art works themselves have to tell the tale. I have not seen the works Richard is discussing, so I have no opinion. But having painted copies of photographs, and having painted copies of other paintings (for private educational study in both cases), I cannot escape the conclusion that painting and photography are not so far removed that a painting cannot be a copy of a photograph by mere virtue of being a painting.

Now, let's say that the artist had put the following statement with the painting about which Richard is concerned: "This painting was inspired by the remarkable photograph of this subject by Richard Wasserman, whose work can be found here, and with whose permission I made this work." Or, maybe he titles the work "An Homage to Richard Wasserman." I'm betting that Richard would have granted that permission, because the artist's statement or title would promote Richard's sales rather than potentially undermining them. To those of you who think Richard should be flattered: This is how flattery is done when it is intended to be flattery.

If it turns out that the guy just happened to paint the same subject as Richard, then there is no infringement, either legally or morally. If the paintings appeared in the same gallery, the gallery owner might put a statement next to each saying so, to prevent confusiong. Without that fact being established, however, the gallery owner has nothing (factual) to say if the question comes up. One writes letters and asserts rights precisely to extract those facts.

Rick "pointing out possibilities" Denney

[Marko]

I have not seen the works Richard is discussing, so I have no opinion.

I agree with most all you said. But I do have an opinion, based solely on Richard's opening description:


The composition is identical as well as the aspect ratio. The painting depicts the scene at a different time of day, and he added part of a tree where in reality none could be. My image is black and white, his is in color.

My opinion, in the absence of direct visual comparison, is that the composition and aspect ratio (which is really a part of composition) alone do not constitute infringement, especially when it comes to landscapes and other independently existing and arranged subjects.

The painter could have as easily and concievably:

1. Created his painting independently, looking at the same scenery on the spot
2. Created his painting by looking at Richard's photograph
3. Created his painting by looking at someone else's photograph
4. Created his painting by looking at someone else's painting

But even if he did use Richard's photograph as either a model or inspiration, there are sufficient differences introduced by changing time of day, adding elements (a tree) and introducing color, all in a different medium, for it to be a truly transformative work. Or at the very least to enable making a solid argument in favor of it, as Richard admitted himself later in the thread.


Without that fact being established, however, the gallery owner has nothing (factual) to say if the question comes up. One writes letters and asserts rights precisely to extract those facts.

Aside from being poor form, accusations of theft are also very poor method of extracting facts, especially when they are NOT based on facts themselves.

I asked this question above but got no answer: if a good argument can indeed be made that the painting in question is transformative, where is the copyright abuse and what is the purpose of the letter?

[cyrus]

Misplaced accusations of theft can also amount to defamation, giving the accused a reason to sue back.

Either way, the lawyers make money. DARN! lol

[Steve Smith]

Either way, the lawyers make money. DARN! lol

You don't have to use lawyers.


Steve.

[rdenney]

Aside from being poor form, accusations of theft are also very poor method of extracting facts, especially when they are NOT based on facts themselves.

I asked this question above but got no answer: if a good argument can indeed be made that the painting in question is transformative, where is the copyright abuse and what is the purpose of the letter?

A good argument can perhaps be made, but it has not been made so far. No such argument is possible on this forum, which has no standing in the argument in any case. It certainly cannot be made by people who have not even seen the works in question. I have stated that I have no opinion, and I don't. But my opinion won't count, and, respectfully, neither will yours. Richard did not need us to tell him the other possibilities of how the artist might have received his inspiration. He was suspicious that the artist worked from his photograph, and that is sufficient cause to explore further if he chooses to.

Other than Richard himself and the painter, only a jury has the standing to express an opinion that counts. Short of putting it in front of a jury, everything is a negotiation and an assertion of rights for the record.

If Richard wrote the painter and said, "You thief! You stole my work! Pay me money, dammit!" then that would not likely turn out very well. But a C&D letter is a respectful and proven way to say, "I created this work and it has come to my attention that your work infringes on my rights. Please take the following actions to restore my rights." It establishes standing and an initial negotiating position. Both of those can be refuted by the other party with facts and countering arguments, and those might well be persuasive and end the matter. That's why you write letters. Without the standing or the demand, there is nothing to respond to and it may just get ignored. A C&D letter may not be the first step--there may be a less formal way of approaching it at first. But to ignore because of what the painter might have done based on our opinions is also not appropriate. The correct outcome is for Richard's rights, to the extent that he has any, to be asserted so that he doesn't lose them. Doing too little may be no closer to that outcome than doing too much.

Rick "thinking this requires cool consideration" Denney

[cyrus]

You don't have to use lawyers.


Steve.


You don't have to use doctors either . . . or dentists . . .

[Scott Davis]

After several encounters with negotiation situations where I did retain a lawyer, I will say that I would sooner run naked through the Korean DMZ while herding elephants hopped up on amphetamines than enter into any kind of legal negotiation without the assistance of a lawyer with expertise in the subject area. Without fail, a qualified lawyer will prevent you from making a disastrous mess for yourself that will cost you ten times as much to clean up as it will to prevent it. Do not be a fool and think lawers are not worth the money.

[Kirk Gittings]

I will say that I would sooner run naked through the Korean DMZ while herding elephants hopped up on amphetamines than enter into any kind of legal negotiation without the assistance of a lawyer........
:)

[rdenney]

After several encounters with negotiation situations where I did retain a lawyer, I will say that I would sooner run naked through the Korean DMZ while herding elephants hopped up on amphetamines than enter into any kind of legal negotiation without the assistance of a lawyer with expertise in the subject area. Without fail, a qualified lawyer will prevent you from making a disastrous mess for yourself that will cost you ten times as much to clean up as it will to prevent it. Do not be a fool and think lawers are not worth the money.

It's a point that I take fully. But it's also a matter of what is at stake.

Rick "who is consulting an attorney, at least initially, for his own situation" Denney

[Bruce M. Herman]

Regarding lawyers and related issues: those who think they may want to obtain information regarding their particular situation should look first to their local ASMP chapter. Its members can usually recommend a lawyer who specializes in copyright law. Almost all of them are willing to listen and then offer advice concerning how strong they think your case is, all at no cost, and regardless of whether you are an ASMP member. If they believe that you have a case, the first step they are likely to take is to send a letter on your behalf with their letterhead. This is often sufficient to obtain a response if your polite letter did not, and usually doesn't cost all that much. At that point, you'll have learned a few things from the lawyer and will be better able to make a decision concerning your next step.

In terms of private property, e.g., buildings, etc., keep in mind that in many states, you must have a property release to market a photo of private property. It doesn't matter where you stood when you took the photograph; you generally can't profit from some else's property without their consent. It is analogous to a model release. This can even extend to trees that are iconic. A well known case in point is the tree on a point of land in a private golf course in Monterey, CA.

[r.e.]

There have been many, many threads on this forum about intellectual property, and they have a tendency to result in an awful lot of fine point parsing over legalities. Meanwhile, I can't recall a single thread on this site about a serious real life problem, as distinct from apprehensions about a possible problem. But as a subject, it sure is fodder for a lot of threads, words and indignation. Maybe discussion of the subject is therapeutic :)

[BrianShaw]

Perhaps there is a valid need for a dedicated "Therapy" forum! How many 'I think my format is smaller than the other LFers' or 'I can't control my urge to buy equipment I'm not sure I need or want' threads might go into such a forum. ;)

[cyrus]

Ebay addicts forum

[Ronan87]

So update? Did the painter laugh and told the OP to shove it (in his darkroom)?

Or was some monetary (lol) arrangement made?

Funnily, this thread went around the art department in one of the Universities here. Teachers were laughing. I'm not sure if it reached the legal department, i'll check Monday.

[akfreak]

I stopped responding at page 4, I think that was 3 days ago. Now we are on page 14, this is funny. This is the game my 5 year old kid plays at school, " the telephone game". In the end it is mostly worthless and served little purpose.

I have seen this topic discussed in a forum before, I haven't seen this type of response here. It seems LF is becoming more and more popular, based on the activitiy here.

[cyrus]

The issues tend to meander - but that's a good thing!

[QT Luong]

Copyright includes the right to control the creation of derivative works.

I am often asked permission to paint my photographs. My policy is to always grant it at no charge, unless the picture is painted in order to be offered for sale, in which case I ask for a royalty of 5%.

[GabrielSeri]

Richard, it is possible that you shared the same vision with the painter.

This happened to me a couple years ago, I was looking at an Ansel Adams book and noticed that he took a photo almost identical to one of mine. We obviously stood at the same spot and took pretty much the same photo except something like 50 years apart. I thought it was weird but this shows that it can happen.

Here are the 2 photos, one made by Ansel and one made by me.

http://www.silverpiscis.com/Photography/ansel_gabriel.jpg

[Marko]

This happened to me a couple years ago, I was looking at an Ansel Adams book and noticed that he took a photo almost identical to one of mine.

Now this is a pretty bold turn of phrase, me thinks! :D

Nice photo, though.

[h2oman]

Ahem...

http://www.huntingtonwitherill.com/gallery/index/detail/559/03.html

I guess you and Ansel weren't alone. I'm pretty sure Galen Rowell has a color version, likely many others do as well.

[GabrielSeri]

I worded that wrong obviously, Saint Ansel didn't copy me! haha but what I meant is how 2 or more people can go to the same location and make similar shots.

[Chilidog]

In My doctor's exam room, in which I spen a lot of time looking att he pictures on the walls, I noticed that one of the prints is of a painting of a streeet scene where one of the buildings is a copy of a famous photograph. It was edited somewhat, flipped left to right, but it was the building in that famous Marion Post Wolcott theater picture.

[Gary Tarbert]

Hi Richard,I had a water colour artist buy one of my images and just copy it verbatim,
It did not bother me ,Although she had reported good sales on it !! The other point i would make is if the scene is a popular much photographed area it is very hard to prove a direct copy of your work(This was not the case with the above mentioned very hard to get to spot)and have never seen another like it . Regards Gary

[ic-racer]

he took a photo almost identical to one of mine.

Same thing keeps happening to me by this 'other' photographer out there...

http://img.photobucket.com/albums/v670/ic-racer/2011/LeeMe.jpg