Calling All Copyright/IP Lawyers

[cgw]

I'm not a lawyer nor do I play one on TV but this is truly interesting:

Photographer Loses Plagiarism Case Against Artist Who 'Ripped Off' Her Work

She plans to appeal.

petapixel.com

 

[Original katomi]

Blimy that is scary

 

[AlanKlein]

Apparently in Europe, the photo has to be unique to be copyrighted, not just your photo. I believe that differs from the US which has a higher protective standard.

 

[jeffashman]

It does set a very bad precedent for portrait photographers, especially ones that work in studios that specialize in portraits. On the other hand, if an artist takes the time and effort with brush and pencil, is that not a unique work? The reason given, the pose is not unique, is greatly flawed. On the flip side, a photographer here in the US was charged with copyright infringement for taking a picture with a tattoo in it. If I take a picture of a Banksy mural in it, have I infringed on their copyright?

 

[RAZKY]

It's not common to find a judge who understands art.

 

[AlanKlein]

It's not common to find a judge who understands art.

This case was in Europe., Do they have an appeals process?

 

[RAZKY]

This case was in Europe., Do they have an appeals process?

Looks like it - the photographer says she will be appealing.

 

[smoke665]

While there are similarities, there are also differences. Apparently enough so that the judge found it to not be an infringement, especially when considering the three part test: 1- It must be a special case that (2) does not conflict with a normal exploitation of a work but which (3) does not unreasonably prejudice the legitimate interests of the rights holder.

 

[AlanKlein]

While there are similarities, there are also differences. Apparently enough so that the judge found it to not be an infringement, especially when considering the three part test: 1- It must be a special case that (2) does not conflict with a normal exploitation of a work but which (3) does not unreasonably prejudice the legitimate interests of the rights holder.

How would US law rate this case?

 

[smoke665]

How would US law rate this case?

My experiences in court have been my attorney always says I'll win but judges never get the same memo.

To not be in violation of infringement some say it only needs to be 10% or more different but that's false. The standard is whether the artworks are “substantially similar,” or a “substantial part” has been changed, which is at the discretion of the judge (or jury). Then here you have to deal with the Fair Use Provision.

 

[AlanKlein]

My experiences in court have been my attorney always says I'll win but judges never get the same memo.

To not be in violation of infringement some say it only needs to be 10% or more different but that's false. The standard is whether the artworks are “substantially similar,” or a “substantial part” has been changed, which is at the discretion of the judge (or jury). Then here you have to deal with the Fair Use Provision.

To me it's very iffy, more in the eye of the beholder. Too much risk although most people won't bother suing. Maybe the best policy is just to do your own work and don't be cute.

 

[vintagesnaps]

I agree, do your own work. Didn't we learn that as kids in school?

It's similar enough but I don't know about copyright laws in other countries. Seems like the photo could've been used as inspiration but this looks like pretty blatant copying. If an artist needs a photo to work from (I need to see an object or subject I'm sketching) then take a photograph yourself and do a drawing of that.

If there was a mural being photographed for news purposes (for example an event being held near a mural) that would be editorial use. It would include the mural in its setting with presumably people in the scene in attendance.

Usually museums allow students/visitors to sketch a painting etc. for the purposes of studying art. But to sketch it just to make a copy in another medium seems to be stealing someone else's work. Especially if you profit from it.

 

[smoke665]

But to sketch it just to make a copy in another medium seems to be stealing someone else's work. Especially if you profit from it.

Last time I checked newspapers, tv, etc., are for profit, though it was debatable at times on the papers I owned. LOL Even non profit have to make money to cover expenses. Which makes me a little iffy on the "Fair Use"exception. I once had a news service pick up a news story I did...no credit, no money, they just ripped it off. I could have sued but the expense was not worth the effort.

f an artist needs a photo to work from (I need to see an object or subject I'm sketching) then take a photograph yourself and do a drawing of that.

To me, photographing a copyrighted work then copying your photograph would still be plagiarism, even if it was once removed. Using that analogy I could photograph the pages in a book, scan it on an OCR scanner, then publish as an online book.

Not that it's right but anytime you put your work in public view, it's going to be ripped off in some part or fashion. From a legal standpoint, I could use a different woman, with different color hair, in the same pose, using the same editing technique and probably pass the sniff test, but Isn't copying an idea, method, color, editing, plagiarism from a strict viewpoint. And, whose to say the original photographer in the article didn't steal some part of someone else's ideas? It's okay to say "do your own work", but the truth is we are all influenced to some degree by other's work, intentionally or unintentionally.

 

[AlanKlein]

Last time I checked newspapers, tv, etc., are for profit, though it was debatable at times on the papers I owned. LOL Even non profit have to make money to cover expenses. Which makes me a little iffy on the "Fair Use"exception. I once had a news service pick up a news story I did...no credit, no money, they just ripped it off. I could have sued but the expense was not worth the effort.



To me, photographing a copyrighted work then copying your photograph would still be plagiarism, even if it was once removed. Using that analogy I could photograph the pages in a book, scan it on an OCR scanner, then publish as an online book.

Not that it's right but anytime you put your work in public view, it's going to be ripped off in some part or fashion. From a legal standpoint, I could use a different woman, with different color hair, in the same pose, using the same editing technique and probably pass the sniff test, but Isn't copying an idea, method, color, editing, plagiarism from a strict viewpoint. And, whose to say the original photographer in the article didn't steal some part of someone else's ideas? It's okay to say "do your own work", but the truth is we are all influenced to some degree by other's work, intentionally or unintentionally.

But doing a drawing from your own photo is different than using someone else's photo.

 

[vintagesnaps]

A photo being published in a newspaper is editorial usage, different than commercial use.

I didn't mean photographing someone's work and copying that in another medium, I meant using your own photograph and making your own drawing/painting etc. from that.

True that someone could do a work of art taking some part of it from other artwork, or being inspired or influenced by other art. I think that's different than directly copying someone else's work.

Of course this was in another country so I guess what's allowed under their copyright laws is different than here.