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02/04/2009 03:17:45 PM · #1 |
...as the "model" for a painting that later becomes WORLD FAMOUS?
Be honest before you click...
Here |
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02/04/2009 03:27:45 PM · #2 |
| i would. definitely. of course they painted it and used their skill to create it. but it did not come from their imagination. they were painting what YOU created from your skill. |
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02/04/2009 03:35:58 PM · #3 |
Nice piece of art but I'd want comp or recognition if it came from my photo !
Originally posted by cmtc:
i would. definitely. of course they painted it and used their skill to create it. but it did not come from their imagination. they were painting what YOU created from your skill. |
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02/04/2009 04:10:35 PM · #4 |
| IMO, it is a "derivative work." AP probably will not prevail. |
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02/04/2009 05:56:26 PM · #5 |
Originally posted by kirbic:
IMO, it is a "derivative work." AP probably will not prevail. |
The copyright owner has the exclusive right to make derivative works. I'm not saying the AP will/should prevail. |
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02/04/2009 06:24:33 PM · #6 |
I hate the AP with a passion but it is their picture...they own it. How can one man (artist) reap all the rewards and/or benefits from this picture without a dime or credit going to the AP or the photographer?
If this is deemed "derivative work", can I then select DP Photos and "paint" using corel painter? Can I then sell my "derivative work". Many many photos here on DPC would translate nicely into Corel Painter for painting !
Originally posted by kirbic:
IMO, it is a "derivative work." AP probably will not prevail. |
Message edited by author 2009-02-04 23:28:10. |
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02/04/2009 06:33:06 PM · #7 |
| After reading the definition of Derivative Work, I don't think the painter has ANY right to this art at all. |
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02/04/2009 07:46:07 PM · #8 |
The painter's lawyers are claiming it was a fair use and I doubt they have a leg to stand on with that argument. Reproducing the entire main subject is a big problem, but having profited significantly from it, that is the nail in the coffin. Not sure how I feel about it, but this guy is WAY away from fair use as the courts have defined it.
Also, his legal advice is coming from stanford?!? Stanford is the home of the "lets just all share our ideas and get along" school of intellectual property law. You can agree or disagree with their grateful dead ideals to just sharing everything freely, but those concepts have never had much success in real courts and that won't change until more lawmakers start smoking pot :P |
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02/04/2009 08:30:50 PM · #9 |
I would think there is a difference between freehand painting from a photograph and actually using a photograph to alter it in some way. The first one I would not think to be under any copyright laws, the second one however would be definite infringement IMHO.
Originally posted by kenskid:
I hate the AP with a passion but it is their picture...they own it. How can one man (artist) reap all the rewards and/or benefits from this picture without a dime or credit going to the AP or the photographer?
If this is deemed "derivative work", can I then select DP Photos and "paint" using corel painter? Can I then sell my "derivative work". Many many photos here on DPC would translate nicely into Corel Painter for painting !
Originally posted by kirbic:
IMO, it is a "derivative work." AP probably will not prevail. |
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02/04/2009 09:07:47 PM · #10 |
If the only issue is credit, credit has been given. He openly acknowledged the source.
But AP wants compensation... I don't know about that. It seems fair-use derivative to me, since the only part of the original remaining is essentially the outline, somewhat like the black line around cartoon characters. The coloring, background, and other context items are all original. The expression is even subtly different. But I'm no expert, and I'm glad it's the court's decision, not mine.
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02/04/2009 10:27:16 PM · #11 |
It sounds a little like this case of a DPC photo turned into a painting and sold.
I suspect many of us would feel a little different if it were our work. I know I would. |
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02/05/2009 04:30:36 AM · #12 |
I really like this picture. Can I change the colors and texture and sell it in art shows? If MY art caught on and I made $450,000 from it, would you want part of it? Would you take me to court?
**Not being mean...just trying to see what you would accept**
Originally posted by Rebecca:
If the only issue is credit, credit has been given. He openly acknowledged the source.
But AP wants compensation... I don't know about that. It seems fair-use derivative to me, since the only part of the original remaining is essentially the outline, somewhat like the black line around cartoon characters. The coloring, background, and other context items are all original. The expression is even subtly different. But I'm no expert, and I'm glad it's the court's decision, not mine. |
Message edited by author 2009-02-05 09:31:02. |
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02/05/2009 08:06:37 AM · #13 |
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit.
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02/05/2009 09:10:12 AM · #14 |
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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02/05/2009 09:42:42 AM · #15 |
Know what power a "cease and desist" has to force someone to stop doing something? None. It's basically a formal and legal way to say "stop it or we're going to sue". To force someone to stop doing something like this would take a court order or a judgement from a lawsuit.
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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02/05/2009 10:33:47 AM · #16 |
The court order or judgement will come in favor of the AP. Now the AP may back down but could very easily win this issue.
Originally posted by Spazmo99:
Know what power a "cease and desist" has to force someone to stop doing something? None. It's basically a formal and legal way to say "stop it or we're going to sue". To force someone to stop doing something like this would take a court order or a judgement from a lawsuit.
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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Message edited by author 2009-02-05 15:34:41. |
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02/05/2009 10:56:42 AM · #17 |
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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Wow... I just saw where that "artist" was awarded a prize from USA networks I think and while I don't care for Obama, I thought it was cool that this was just some guy who made the image...
Sad to see he stole an AP photo to do it... I wonder if he profited directly from the image.
Maybe they will sue me for all my derived works from Obama images. :) |
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02/05/2009 10:56:53 AM · #18 |
Maybe. A court case is never a certain thing.
They might get everything they ask for.
They might win the case, but only get awarded a $1 judgement.
They might lose.
People used to give investment advice with the same certainty you have...look where that's gotten us.
I'm not saying either side is right or wrong, only that the outcome is by no means a certainty.
Originally posted by kenskid:
The court order or judgement will come in favor of the AP. Now the AP may back down but could very easily win this issue.
Originally posted by Spazmo99:
Know what power a "cease and desist" has to force someone to stop doing something? None. It's basically a formal and legal way to say "stop it or we're going to sue". To force someone to stop doing something like this would take a court order or a judgement from a lawsuit.
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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02/05/2009 02:58:09 PM · #19 |
If you're talking about Jury trial then you are correct. Anything can happen.
I don't know about your investment advice...you did say "look where that's gotten us"...but I'm doing fine in the market. I was advised when and how much to put in and advised that I should get out. I'm sitting pretty on the side until the great one fixes us up.
Originally posted by Spazmo99:
Maybe. A court case is never a certain thing.
They might get everything they ask for.
They might win the case, but only get awarded a $1 judgement.
They might lose.
People used to give investment advice with the same certainty you have...look where that's gotten us.
I'm not saying either side is right or wrong, only that the outcome is by no means a certainty.
Originally posted by kenskid:
The court order or judgement will come in favor of the AP. Now the AP may back down but could very easily win this issue.
Originally posted by Spazmo99:
Know what power a "cease and desist" has to force someone to stop doing something? None. It's basically a formal and legal way to say "stop it or we're going to sue". To force someone to stop doing something like this would take a court order or a judgement from a lawsuit.
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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02/05/2009 03:04:58 PM · #20 |
IMO the "artist" needs to STOP earning money for his great work of art. It is stolen, no different than the stuff people rip off from DPC.
I doubt that I would get away with taking Blown Away...by Achoo, shown below...put a three color tone to certain parts and NEVER HAVE TO WORK AGAIN b/c it got picked up on and people can't live without a $1000 signed print from the artist (ME).
Originally posted by HawkeyeLonewolf:
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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Wow... I just saw where that "artist" was awarded a prize from USA networks I think and while I don't care for Obama, I thought it was cool that this was just some guy who made the image...
Sad to see he stole an AP photo to do it... I wonder if he profited directly from the image.
Maybe they will sue me for all my derived works from Obama images. :) |
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02/05/2009 03:31:14 PM · #21 |
| NPR did an interesting analysis today. You can listen to it here. |
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02/05/2009 03:32:18 PM · #22 |
Originally posted by US Supreme Court in Campbell v. Acuff-Rose Music:
the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. |
I think there's little question that this piece is "transformative" and I have read a number of analyzes by people better informed than I that don't give AP a chance. If I looked at a picture of Obama while I painted one, that would clearly be a transformative work. Nor does the existence of the poster in any way diminish the value of the original work - on the contrary, it has increased it considerably. So there's no tort question.
That said, I think it'd be nice to give the photographer some credit. Nice, but in no way any kind of legal requirement. As far as AP goes I have zero sympathy; they're just hoping for a settlement check, and one to which they have no legal (nor in my mind moral) claim. |
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02/05/2009 03:44:20 PM · #23 |
Originally posted by kenskid:
IMO the "artist" needs to STOP earning money for his great work of art. It is stolen, no different than the stuff people rip off from DPC.
I doubt that I would get away with taking Blown Away...by Achoo, shown below...put a three color tone to certain parts and NEVER HAVE TO WORK AGAIN b/c it got picked up on and people can't live without a $1000 signed print from the artist (ME).
Originally posted by HawkeyeLonewolf:
Originally posted by kenskid:
It's illegal. Just like the Obama rip off. The AP owns the photo that the street artist "painted". Unless the AP backs off, or comes to some kind of agreement on use, there will be a cease and desist (sp) letter coming.
Originally posted by Rebecca:
Would I be pissed? Sure. Is it legal? We'll see. I guess I'm looking at it from a non-emotional viewpoint, since "because it pissed me off" isn't generally grounds for a lawsuit. |
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Wow... I just saw where that "artist" was awarded a prize from USA networks I think and while I don't care for Obama, I thought it was cool that this was just some guy who made the image...
Sad to see he stole an AP photo to do it... I wonder if he profited directly from the image.
Maybe they will sue me for all my derived works from Obama images. :) |
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Ignoring the fact that  DrAchoo's piece is a derivative work: if it were a 100% original work it would be unique enough that the origin of the derivative would be clearly identifiable; and as it would presumably be competing in the same market it would also supersede the objects of the original creation - that is, it would compete with Doc's potential sales of his work. The Obama piece, OTOH, does not compete with the original work. There is no damage to either the photographer or the copyright holder. They are free to market their image just as before. |
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02/05/2009 03:53:03 PM · #24 |
Ok good...so I can take this picture by Cutter..print it...put it on the side of my computer, draw it back into photoshop...(NO ONE would know if I just layered on in PS for "guidance")....paint it purple with some green... sell hundreds of them and Cutter is out in the cold with NO rights?
Originally posted by eamurdock:
Originally posted by US Supreme Court in Campbell v. Acuff-Rose Music:
the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. |
I think there's little question that this piece is "transformative" and I have read a number of analyzes by people better informed than I that don't give AP a chance. If I looked at a picture of Obama while I painted one, that would clearly be a transformative work. Nor does the existence of the poster in any way diminish the value of the original work - on the contrary, it has increased it considerably. So there's no tort question.
That said, I think it'd be nice to give the photographer some credit. Nice, but in no way any kind of legal requirement. As far as AP goes I have zero sympathy; they're just hoping for a settlement check, and one to which they have no legal (nor in my mind moral) claim. |
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02/05/2009 04:15:00 PM · #25 |
Originally posted by kenskid:
Ok good...so I can take this picture by Cutter..print it...put it on the side of my computer, draw it back into photoshop...(NO ONE would know if I just layered on in PS for "guidance")....paint it purple with some green... sell hundreds of them and Cutter is out in the cold with NO rights?
Originally posted by eamurdock:
Originally posted by US Supreme Court in Campbell v. Acuff-Rose Music:
the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. |
I think there's little question that this piece is "transformative" and I have read a number of analyzes by people better informed than I that don't give AP a chance. If I looked at a picture of Obama while I painted one, that would clearly be a transformative work. Nor does the existence of the poster in any way diminish the value of the original work - on the contrary, it has increased it considerably. So there's no tort question.
That said, I think it'd be nice to give the photographer some credit. Nice, but in no way any kind of legal requirement. As far as AP goes I have zero sympathy; they're just hoping for a settlement check, and one to which they have no legal (nor in my mind moral) claim. |
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Well... if the final work is "transformative", a question which is not established by the number of colors you use or how many copies you sell... yes. From a legal standpoint, yes.
It's an interesting question when one talks about, say, Richard Prince (both from a legal and artistic viewpoint, IMO) but this case is pretty cut and dry.
Also - images of public figures and events are different. For instance: Time Magazine owns the Zapruder film of Kennedy's assassination. They have tried and failed, however, to prevent the publishing of stills from the film.
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