Your stance on artists re-creating photos without permission, but not selling?

[unpopular]

The plot thickens!

It is a strange case because under federal copyright law, taking a photo of a work of art does not infringe on copyright. However, the museum is making the claim under common law, partially on the argument that Hawk broke the law by ignoring the sign.

FindLaw's Common Law: Flickr Photos Gets Man Sued by Erotic Art Museum for $2 Million

My wife, who is a trained non-practicing paralegal and prelaw student seems to think findlaw is an OK reference. I don't know myself.

But if what they are saying is true, then this is not even a copyright issue.

 

[Kerbouchard]

OK, per section 107, I think what the OP is talking about would qualify as fair use.

Close. More just wondering if you people find it personally (NOT legally) unethical to recreate a photo through a different medium that was not intended to be sold.

IMO, it's a ridiculous question to ask in the first place. You can't separate ethics and legality. I assume you are over 18 and have the right to vote. I also assume that you understand that this country is founded upon the principles of Law. You can't steal stuff. We have laws against it for good reason. In this case, ethics and law merge well together.

If you steal somebody else's ideas, creativity, effort, and work to reproduce their copyrighted work in a different medium, you are infringing upon copyright, intellectual property, and breaking the law.

It's honestly not that complicated.

 

[Josh66]

You can't separate ethics and legality.

Sure you can. Big Business does it every day.

 

[unpopular]

Without citation, I think this is unethical. If not properly cited, it is being presented as an original work of art, which it is not. This is similar to taking someone elses' material, rewriting it to sound like it's something you wrote. Without citation, this is plagiarism and academically dishonest if not illegal.

I do not see any ethical problem with using a photograph as a study provided the original is cited and that it is not being presented in any way as an original work of art that is entirely retained by the artist who rendered it. It should be absolutely clear though that while this use, in my opinion, does not violate the rights of the original author, as it doesn't in providing cited ideas in an academic paper, it is a derivative of the original and you hold no academic, intellectual or commercial ownership of the image.

 

[unpopular]

You can't separate ethics and legality.

This is completely false. It is not unethical to smoke pot. Period.

If you steal somebody else's ideas, creativity, effort, and work to reproduce their copyrighted work in a different medium, you are infringing upon copyright, intellectual property, and breaking the law.

That is not the issue, the issue is if it is stolen or if it is being used.

 

[Kerbouchard]

And again, IMO, it is still illegal.

Just because it's your opinion does not make it illegal...

I mean, maybe I'm just reading this stuff wrong or something... If you're going to say that it's illegal, could you point me to the section that you read that convinced you of that? Everything I'm reading says it's legal...

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)
Again, the government website for copyright, and although I already said it was about worthless, it is the appropriate resource.

Only the owner of copyright in a work has the right to prepare, or to authorize
someone else to create, a new version of that work. Accordingly, you cannot
claim copyright to another's work, no matter how much you change it, unless you
have the owner's consent

And next...

The plot thickens!

It is a strange case because under federal copyright law, taking a photo of a work of art does not infringe on copyright. However, the museum is making the claim under common law, partially on the argument that Hawk broke the law by ignoring the sign.

FindLaw's Common Law: Flickr Photos Gets Man Sued by Erotic Art Museum for $2 Million

My wife, who is a trained non-practicing paralegal and prelaw student seems to think findlaw is an OK reference. I don't know myself.

But if what they are saying is true, then this is not even a copyright issue.

That case had a lot more to do with the way he published it. He excluded the frames and the lighting and made exact reproductions of the original work. In any case, I never followed up on the case and I'm not sure how it turned out. It was just a convenient example of somebody reproducing copyrighted work with no commercial interest in selling it. Either way, I'm sure the legal fees weren't pleasant.

 

[Kerbouchard]

You can't separate ethics and legality.

This is completely false. It is not unethical to smoke pot. Period.

I am not prepared to make that argument other than if you have the right to vote, you have the right to change the laws. FWIW, I happen to agree with you.

If you steal somebody else's ideas, creativity, effort, and work to reproduce their copyrighted work in a different medium, you are infringing upon copyright, intellectual property, and breaking the law.


That is not the issue, the issue is if it is stolen or if it is being used.

So, if I steal your car and park it in my driveway, with me promising not to drive it anywhere, you are okay with that?

 

[unpopular]

The world just isn't that black and white:

http://caselaw.findlaw.com/us-2nd-circuit/1374144.html

And if you want to battle appropriate sources, this can actually be used in court as a primary source if it's pertaining.

So, if I steal your car and park it in my driveway, with me promising not to drive it anywhere, you are okay with that?

If the law provided you with that right, it would be legal. Whether I am OK with it, that's really a different issue. This is precisely the ethical/legal dichotomy that we're talking about, and simply because we have the right to vote and change laws does not influence the ethicality of any given law. Slavery was no more ethical then than it is today.

But If you want a 1994 volvo with transmission issues that is currently only really being used for long term storage, go for it! But can I have my darkroom chemicals and bicycle back, anyway?

 

[Josh66]

And again, IMO, it is still illegal.

Just because it's your opinion does not make it illegal...

I mean, maybe I'm just reading this stuff wrong or something... If you're going to say that it's illegal, could you point me to the section that you read that convinced you of that? Everything I'm reading says it's legal...

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)
Again, the government website for copyright, and although I already said it was about worthless, it is the appropriate resource.

Only the owner of copyright in a work has the right to prepare, or to authorize
someone else to create, a new version of that work. Accordingly, you cannot
claim copyright to another's work, no matter how much you change it, unless you
have the owner's consent

Yeah, well, since she isn't trying to claim ownership of the copyright, I don't see how that applies...

 

[Kerbouchard]

The world just isn't that black and white:

Docket No.

And if you want to battle appropriate sources, this can actually be used in court as a primary source if it's pertaining.

Your example regards Collages, which many interpret to be a transformative art and fair use. We aren't talking about collages. We are talking about somebody painting a photo.

In any case, a collage, by definition, incorporates a very small piece into a larger whole. It is transformative.

Although, I disagree with the premise, and think that the artist should create the work on his own, the 'artist' in your link clearly took an existing work and transformed it into something completely different.

Painting a photograph is a completely different scenario.

 

[Josh66]

How is a car the same as an idea...?

 

[Kerbouchard]

Just because it's your opinion does not make it illegal...

I mean, maybe I'm just reading this stuff wrong or something... If you're going to say that it's illegal, could you point me to the section that you read that convinced you of that? Everything I'm reading says it's legal...

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)
Again, the government website for copyright, and although I already said it was about worthless, it is the appropriate resource.

Only the owner of copyright in a work has the right to prepare, or to authorize
someone else to create, a new version of that work. Accordingly, you cannot
claim copyright to another's work, no matter how much you change it, unless you
have the owner's consent

Yeah, well, since she isn't trying to claim ownership of the copyright, I don't see how that applies...

The part you seemed to have skipped over was the part where only the original copyright holder has the right to prepare or authorize that derivative work in the first place. I put the applicable text in bold...

 

[Josh66]

The part you skipped over was the title of that paragraph that you quoted:

"How much do I have to change in order to claim copyright in someone else's work?"

When did she say she wanted to claim copyright on the drawings?

 

[Kerbouchard]

The part you skipped over was the title of that paragraph that you quoted:

"How much do I have to change in order to claim copyright in someone else's work?"

When did she say she wanted to claim copyright on the drawings?

I didn't skip over it. Only the original copyright holder can authorize a duplicate of their work, regardless of the medium used. It doesn't matter whether it is a painter, a sculpter, or a photographer.

You can't reproduce other people's work.

 

[unpopular]

The world just isn't that black and white:

Docket No.

And if you want to battle appropriate sources, this can actually be used in court as a primary source if it's pertaining.

Your example regards Collages, which many interpret to be a transformative art and fair use. We aren't talking about collages. We are talking about somebody painting a photo.

In any case, a collage, by definition, incorporates a very small piece into a larger whole. It is transformative.

Although, I disagree with the premise, and think that the artist should create the work on his own, the 'artist' in your link clearly took an existing work and transformed it into something completely different.

Painting a photograph is a completely different scenario.

Hmm. Maybe. But transformation is not an aesthetic one, but one of purpose. I would say that by using a work specifically as a study is intrinsically transformative; that the original was created as an original work of art, while the other was created as an educational pursuit. Perhaps posting it on a personal website might break this idea, but still, provided it is not being presented as an original work, it's purpose is transformed and the rendering still is being maintained as a study, not as an original work.

I will warn, I don't know if this is proven or not, and it's really just my own speculation on the matter. Bear in mind though, that this is a moral discussion, and not a legal one.

Here is an article from the J. of Intellectual Property

http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1346&context=fac_artchop&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dfolsom v. marsh%26source%3Dweb%26cd%3D3%26ved%3D0CDMQFjAC%26url%3Dhttp%3A%2F%2Fdigitalcommons.law.uga.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1346%26context%3Dfac_artchop%26ei%3DCDD0TsraKILE2wW0x7G7Ag%26usg%3DAFQjCNFvBxYuled1KhQi64OYddM4_AjbBw%26sig2%3DP7B89n897xtjI60RdvyrMw#search="folsom v. marsh"

Though I have not yet read it, it deals with a significant case law that formed the 1976 copyright act, and the transformative theory. At least that is what wikipedia sez.