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DPChallenge Forums >> Photography Discussion >> Question for my DPC Internet Copyright Lawyers
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04/22/2013 08:34:36 AM · #1
There is a wealth of knowledge here, so I am hoping to get an answer without getting too deep into the situation. An well-known comic artist has used one of my images as focal point of a print he is selling. I sell this image as stock, but it has never had an extended license purchased, which is the only way it can be used in the manner it was used. Is the artist allowed to do this? It is a portrait of me and essentially a digitally rendered image of the one I sell.

Thoughts?
04/22/2013 08:46:42 AM · #2
So this person didn't actually take your image?

if you are the subject, you can lay claim to your likeness and probably go after him on those grounds.
04/22/2013 08:49:02 AM · #3
It's likely that the artist believes that his use would be considered a Derivative Work
04/22/2013 08:49:47 AM · #4
I am not a lawyer but I do know at shutterstock there has been discussions in the forums about this. The illustrators are now required to post their source image as well as the final,the source image must be their own (either a drawing or a photograph). If they used a likeness of someone in their drawing they have to have a model release. So if shutterstock is requiring it then I think you have some legal grounds to go after this guy if you want.
04/22/2013 08:51:05 AM · #5
Originally posted by Mike:

So this person didn't actually take your image?

if you are the subject, you can lay claim to your likeness and probably go after him on those grounds.


Unless the use is commercial, I doubt it.
04/22/2013 08:54:07 AM · #6
Here is the link if you want to read it, I think there is some relevant info in here:

Shutterstocks policy on submitting vectors and illustrations
04/22/2013 09:23:58 AM · #7
The Obama HOPE poster debacle might serve as a precedent.

Good luck. Doesn't sound very cool if it's not only an image by you, but of you as well.
04/22/2013 10:13:46 AM · #8
Originally posted by Spork99:

It's likely that the artist believes that his use would be considered a Derivative Work


Essentially that just means that the comic artist can't claim a copyright for HIS work (derived from Todd's). It has nothing to do with the copyright of the source material.

04/22/2013 10:17:13 AM · #9
Originally posted by Spork99:

Originally posted by Mike:

So this person didn't actually take your image?

if you are the subject, you can lay claim to your likeness and probably go after him on those grounds.


Unless the use is commercial, I doubt it.


Non-commercial would be a single original drawing for sale or a very small print run. Nevertheless, if that original or print was displayed to a general audience, he'd need a model release IMO.
04/22/2013 11:31:03 AM · #10
There is a huge legal difference between images (e.g., electronic or from camera) and hand-drawn images. A hand-drawn image belongs to the artist drawing it, regardless of its content - famous person, trademark, copyrighted material, etc. Now, the owner of the content replicated (e.g., Harley-Davidson) can take legal action against the artist, but to my knowledge, have served more as a nuisance deterrent rather than resolution based on legal grounds.
FWIW - I am not a copyright lawyer, nor do I play one on dpc - just repeating info I've heard (supposedly from my son's college prof, but...)
04/22/2013 11:44:11 AM · #11
In a similar situation, I have an rock band, and we do use a website to sell limited license to our songs, under (Creative Commons).

I was googling us, as I do occasionally do, and saw that Getty images was offering a half dozen of our songs that were on the other site, for sale.

the point is, perhaps yours was brokered as well?
04/22/2013 11:51:12 AM · #12
Originally posted by dtremain:

There is a huge legal difference between images (e.g., electronic or from camera) and hand-drawn images. A hand-drawn image belongs to the artist drawing it, regardless of its content - famous person, trademark, copyrighted material, etc. Now, the owner of the content replicated (e.g., Harley-Davidson) can take legal action against the artist, but to my knowledge, have served more as a nuisance deterrent rather than resolution based on legal grounds.
FWIW - I am not a copyright lawyer, nor do I play one on dpc - just repeating info I've heard (supposedly from my son's college prof, but...)


yes but there is a huge difference in using a photo as a reference and outright copying it. What is the difference between a copying a photo and making into a painting and painting a painting exactly like another painting. In painting it is called a forgery. I think it is just as wrong to do to a photo.
04/22/2013 11:58:04 AM · #13
Originally posted by h2:

Originally posted by Spork99:

Originally posted by Mike:

So this person didn't actually take your image?

if you are the subject, you can lay claim to your likeness and probably go after him on those grounds.


Unless the use is commercial, I doubt it.


Non-commercial would be a single original drawing for sale or a very small print run. Nevertheless, if that original or print was displayed to a general audience, he'd need a model release IMO.


Sales of prints don't require a model release. You can take a picture of a guy on the street and publish it in the paper or sell prints in a gallery or other sales venue. A model release is required for commercial use, which means things like advertising. So if the OP's face was used in an ad, that would be require a release.
04/22/2013 12:13:39 PM · #14
Originally posted by sjhuls:

What is the difference between a copying a photo and making into a painting and painting a painting exactly like another painting. In painting it is called a forgery. I think it is just as wrong to do to a photo.

Umm, no... It's only a "forgery" if you claim it's an original by that artist. Art students, for example, have been copying Old Masters for hundreds and hundreds of years...
04/22/2013 01:08:03 PM · #15
Originally posted by Bear_Music:

Originally posted by sjhuls:

What is the difference between a copying a photo and making into a painting and painting a painting exactly like another painting. In painting it is called a forgery. I think it is just as wrong to do to a photo.

Umm, no... It's only a "forgery" if you claim it's an original by that artist. Art students, for example, have been copying Old Masters for hundreds and hundreds of years...


I guess I am talking more about resale. I don't think there is anything wrong with coping an image to learn, but you can't copy an image and then make money off of it.

The reason for the crack down on shutterstock is that illustrators are taking images off the web and then tracing them into illustrations to sell for stock. I think they thought it was okay because they were turning it into a different media, but copying a photograph that isn't yours into a painting doesn't somehow make it yours.
04/22/2013 01:11:31 PM · #16
Originally posted by sjhuls:

Originally posted by Bear_Music:

Originally posted by sjhuls:

What is the difference between a copying a photo and making into a painting and painting a painting exactly like another painting. In painting it is called a forgery. I think it is just as wrong to do to a photo.

Umm, no... It's only a "forgery" if you claim it's an original by that artist. Art students, for example, have been copying Old Masters for hundreds and hundreds of years...


I guess I am talking more about resale. I don't think there is anything wrong with coping an image to learn, but you can't copy an image and then make money off of it.

The reason for the crack down on shutterstock is that illustrators are taking images off the web and then tracing them into illustrations to sell for stock. I think they thought it was okay because they were turning it into a different media, but copying a photograph that isn't yours into a painting doesn't somehow make it yours.


Not if you're Bob Dylan ;0
04/22/2013 01:16:45 PM · #17
Originally posted by sjhuls:

Originally posted by Bear_Music:

Originally posted by sjhuls:

What is the difference between a copying a photo and making into a painting and painting a painting exactly like another painting. In painting it is called a forgery. I think it is just as wrong to do to a photo.

Umm, no... It's only a "forgery" if you claim it's an original by that artist. Art students, for example, have been copying Old Masters for hundreds and hundreds of years...


I guess I am talking more about resale. I don't think there is anything wrong with coping an image to learn, but you can't copy an image and then make money off of it.

The reason for the crack down on shutterstock is that illustrators are taking images off the web and then tracing them into illustrations to sell for stock. I think they thought it was okay because they were turning it into a different media, but copying a photograph that isn't yours into a painting doesn't somehow make it yours.


If you're Marcel DuChamp you can.

L.H.O.O.Q.
04/22/2013 03:20:59 PM · #18
Google Rodgers v Koons. Artist sculpted based off a photo, and claimed it was a parody and therefore exempt from copywrite. The courts ruled it was too similar to the photo and found against the sculptor. As far as I know this is the latest ruling going
Link to the thinking: //tags.library.upenn.edu/project/35964

Message edited by GeneralE - Fixed link to article.
04/22/2013 07:39:38 PM · #19
Thanks everyone for the responses! Appreciate the support.
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