Calling All Copyright/IP Lawyers

[AlanKlein]

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.

The problem is that it isn't clear when you're copying and when you're changing it enough to be your own work. It's up to juries and judges who are not consistent. It's in the eye of the beholder. You're gambling they'll agree with your point of view. But who knows?

It may be the best thing to do is just stay away from using other people's work as a start on your work. Or contact the original artist and pay them for its use.

 

[smoke665]

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

The devil is in the details. Whether you work from the original, photographic copy, or memory, if you incorporate a "substantial" amount of the original work in your work, it's copyright infringement. The determination as to "substantial" will ultimately be decided by a third party, not the original artist or the one infringing.

I use other artists/photographers work from old masters to modern day as inspiration and instruction, but I purposely work from memory so as to impart my own spin in the mix.

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

How so? At one time I owned 3 newspapers, we charged for subscriptions, we charged at the news stand, and we charged for ads carried in the pages. Yet according to the "fair use" exception, we could use anyone's photo or artwork without compensation. Granted we did give recognition, but we made money off the image by virtue of being in the paper.

 

[AlanKlein]

The devil is in the details. Whether you work from the original, photographic copy, or memory, if you incorporate a "substantial" amount of the original work in your work, it's copyright infringement. The determination as to "substantial" will ultimately be decided by a third party, not the original artist or the one infringing.

I use other artists/photographers work from old masters to modern day as inspiration and instruction, but I purposely work from memory so as to impart my own spin in the mix.



How so? At one time I owned 3 newspapers, we charged for subscriptions, we charged at the news stand, and we charged for ads carried in the pages. Yet according to the "fair use" exception, we could use anyone's photo or artwork without compensation. Granted we did give recognition, but we made money off the image by virtue of being in the paper.

Wouldn;t it be under the Fair Use doctrine if let;s say you were reporting the opening of a new museum or art exhibit and showing the owner of the museum standing next to a painting or photograph at the gallery? That would be different from let's say taking a full shot of the painting and using it as the cover photo of your news magazine.

 

[smoke665]

Wouldn;t it be under the Fair Use doctrine if let;s say you were reporting the opening of a new museum or art exhibit and showing the owner of the museum standing next to a painting or photograph at the gallery? That would be different from let's say taking a full shot of the painting and using it as the cover photo of your news magazine.

Yes it would, as would using a full unaltered copy of a work, but I've never felt like the Fair Use exception was all that fair to the owner of the copyright. Newspapers/magazines/News shows are generally "for profit". Their product consist of everything within the margins/video, and they generate revenue from selling that product. Most do give recognition to the owner of the copyright, but not always.

 

[smoke665]

but the model should have filed a lawsuit in connection with violation of portrait rights. If it's correct, this model has signed a contract with the photographer, but not with the painter who has been copying the photo, so there is an infringement of portrait rights and privacy of the model

Good point, but I suspect that it would also fall under the "substantial difference" category. I mean the painter did add an earring. LOL All kidding aside, like you, I suspect there's more than what the article fully explains.

 

[AlanKlein]

Yes it would, as would using a full unaltered copy of a work, but I've never felt like the Fair Use exception was all that fair to the owner of the copyright. Newspapers/magazines/News shows are generally "for profit". Their product consist of everything within the margins/video, and they generate revenue from selling that product. Most do give recognition to the owner of the copyright, but not always.

I think Congress was trying to split the baby. They want to protect the owner. But they also felt that it's important to have some ability to show the art and discuss it whether for news, historic application, teaching students in school, making it available for future applications that expand its use without violating the original owners' ability to profit from it, etc.

If you had to get the owner's permission or pay to use your video of the interview, it could be weeks or months, long after it would have any news value.

 

[AlanKlein]

To set the record straight, Luxembourg is part of the EU and the same copyright conditions apply to all countries in the EU as in the US! The legislation within the EU is even stricter than in the US, because where you can photograph everyone on the street in the US, this is not just allowed in the EU. Ofcourse, as a photographer you've the copyright of your own work, would be stranger if that would not be the case. In the EU we don't have something like Fair Use, it's something brought to us from the US by the internet, not allowed in the EU.

There will be something else at play in this case, but unfortunately no further details are provided with these kinds of speculative stories about, for example, the substantiation of the verdict, etc., in my opinion it is all rather exaggerated and the photographer in question is not too smart either , because not the photographer but the model should have filed a lawsuit in connection with violation of portrait rights. If it's correct, this model has signed a contract with the photographer, but not with the painter who has been copying the photo, so there is an infringement of portrait rights and privacy of the model, there's a good chance such a case can be won and the defendant has to paid.

As I say, there is most likely something more going on that is not mentioned in this article, you read of course a one-sided explanation of the matter, because in the EU too, the maker of a unique photographic work, a song, a painting, etc. etc. has automatically the copyright of this own work, there is no difference within the EU with other countries in the world!

I didn't even think about the model issue, another reason to start fresh with your own work and not dovetail off of others' work.

 

[cgw]

To set the record straight, Luxembourg is part of the EU and the same copyright conditions apply to all countries in the EU as in the US! The legislation within the EU is even stricter than in the US, because where you can photograph everyone on the street in the US, this is not just allowed in the EU. Ofcourse, as a photographer you've the copyright of your own work, would be stranger if that would not be the case. In the EU we don't have something like Fair Use, it's something brought to us from the US by the internet, not allowed in the EU.

There will be something else at play in this case, but unfortunately no further details are provided with these kinds of speculative stories about, for example, the substantiation of the verdict, etc., in my opinion it is all rather exaggerated and the photographer in question is not too smart either , because not the photographer but the model should have filed a lawsuit in connection with violation of portrait rights. If it's correct, this model has signed a contract with the photographer, but not with the painter who has been copying the photo, so there is an infringement of portrait rights and privacy of the model, there's a good chance such a case can be won and the defendant has to paid.

As I say, there is most likely something more going on that is not mentioned in this article, you read of course a one-sided explanation of the matter, because in the EU too, the maker of a unique photographic work, a song, a painting, etc. etc. has automatically the copyright of this own work, there is no difference within the EU with other countries in the world!

"As I say, there is most likely something more going on that is not mentioned in this article, you read of course a one-sided explanation of the matter, because in the EU too, the maker of a unique photographic work, a song, a painting, etc. etc. has automatically the copyright of this own work, there is no difference within the EU with other countries in the world!"

But then there's the matter of copyright in music publishing: it's apparently time-limited and non-renewable in the EU, unlike the U.S. I routinely buy recordings from EU-based sellers at discount prices that are either unavailable or full-priced from US vendors. Often these recordings are sourced from the EU-subs of major labels and not from independent reissue labels.

 

[AlanKlein]

"As I say, there is most likely something more going on that is not mentioned in this article, you read of course a one-sided explanation of the matter, because in the EU too, the maker of a unique photographic work, a song, a painting, etc. etc. has automatically the copyright of this own work, there is no difference within the EU with other countries in the world!"

But then there's the matter of copyright in music publishing: it's apparently time-limited and non-renewable in the EU, unlike the U.S. I routinely buy recordings from EU-based sellers at discount prices that are either unavailable or full-priced from US vendors. Often these recordings are sourced from the EU-subs of major labels and not from independent reissue labels.

Maybe that's why many of them come to the US to record and be protected. Or can they file in both EU and the US and have different protections?

 

[cgw]

Maybe that's why many of them come to the US to record and be protected. Or can they file in both EU and the US and have different protections?

Really talking more about copyright on older recordings that Capitol and Universal Music renew--like 50s and 60s jazz. So many titles available from the EU that are pricey or unavailable new in N. America because of copyright renewal.

 

[RacePhoto]

Lets see?

What is substantially different? Totally subjective, every case could be different. Transformative or derivative?

“The worst part is that the ramification not only affects my own work, but sets a dangerous precedent that extends to all photographers and artists whose portraits are now under threat of losing. copyright protection,” In this specific instance, I'd agree. After looking at the two images, it's not just a reference or inspiration, it's a mirror image.

Yes, students of art creation are taught by copying as a legitimate learning tool. That isn't to say, they are taught to copy and then sell the reproductions as original art. Someone can paint a Rembrandt, but they can't sell the copy as their own creation. At least they shouldn't.

There's a difference between being inspired and creating a new image, or copying. This one looks like a copy to me and probably anyone else with two eyes.

In the news (and I just read, I'm not an attorney so this is personal opinion) what is fair use is coming out in a couple of cases. Most noteworthy is

Warhol v. Goldsmith – The Passive Voice

www.thepassivevoice.com

Warhol vs Goldsmith or now Goldsmith vs the Warhol foundation.
Goldsmith lost the first case! Warhol v. Goldsmith: A Terrible Decision, Correctly Decided - Office of Copyright
What's going on now is, a matter of who licensed what and when and what is fair use and what is transformative. It's at the US Supreme court currently. There could be important copyright ramifications as a result of the 2022-2023 decision.

The Court will decide whether Warhol, under fair use doctrine, "meaningfully transformed" the original black and white photo of Prince to create new works of art, the paintings and drawings of Prince.

The U.S. Copyright Office in its amicus brief sided with Goldsmith in that Warhol's works were not fair use, as they did not create new expressive meaning, and that a ruling in favor of Warhol would "dramatically expand copyists' ability to appropriate existing works"

Yes, I think in the US the decision might have been different.

 

[smoke665]

What is substantially different? Totally subjective, every case could be different. Transformative or derivative?

Interesting read on the case, and important to remember that "subjective" covers a lot of ground. As I noted earlier, anytime you put a creative work in public view, it's going to be subject to the possibility of being ripped off in some form.

 

[cgw]

Music is absolutely a completely different chapter, because it deals with so many other forms of right/laws in addition to copyright and often also concerns ownership, sold and/or shared copyrights or certified rental of rights among various interested parties. Many artists sell their copyrights to music publishers or record labels, which is why other types of rights are more often involved than direct copyright in photography. In the EU, 70 years after the death of the last living copyright holder normally applies and there is also renewal as in the US, so this way there is no difference between EU and US.

Where there is a difference in Asia, the EU and perhaps more countries compared to the US is the so-called neighboring right on master tapes, this is an normal intellectual property right (but, in the US considered as copyright) that runs in the EU 70 years from the recording of the music track and divers therefore from copyright which goes 70 years after death. In almost all cases, these neighboring rights are in the hands of record companies (although this is changing rapidly in this digital age where artists have their own home studio) who can therefore market music as they see fit without being bothered by copyright. Because they have nothing to do with descendants or relatives who often charge a lot of money for the release of music tracks, record labels being the owners of such master tapes can legally re-release existing music at a low(er) price, in contrast to third parties who perhaps buying an expensive license to release music tracks from an artist's heirs.

You used to see this kind of thing when artists went from one record label to another, whereby the 'old' record company continued to release all kinds of compilation LPs, CDs, etc. for years simply because they could monetize the neighboring rights to the master tapes. In this case with cheap music from the EU, this is also the case, a matter of doing smart business without anything being illegal.

In practice, this appears not to be followed consistently among EU sellers/distributors. I'm buying 60s Blue Note titles on EU-sourced CDs that are available only on their pricey Tone Poet LP series in the US--some never released till recently in any format. But I digress...