Can o' worms?

[Raphael]

This is a classic discussion that always seems to devolve into a debate regarding legalities.

I'm not interested in legalities they're already (too) well documented, we'll leave that to the (spit, spit!) lawyers.

I would like to ask all you guys what you think. Especially the professional photographers (ask your models too) amongst you.

Let us examine a theoretical scenario:

A photographer takes his camera out and about with him, say to a public park. Whilst there he spots an attractive young lady in a peach of a pose and snaps a couple of shots off.

Though the photographer doesn't realise it the young lady is a professional model on her lunchbreak. (Just to make it more complicated.)

When he develops the shots he's particularly chuffed with the way they've turned out and posts them on his web site.

Now, I come along to the web site, see these shots, and really like the pose and look of the girl, instantly think of something I could do with one of them. So I drag the shot off the web site, and bring it into Photoshop.

Once in Photoshop I cutout the girl from the park background comp her into a rather complicated image that I've taken hours to create, probably do something like give her wings, or intricate fur, and likely distort her with 'Liquify' or the like. Chances are I'll use bits from several different shots comp'd together probably including studio sets.

I take 'my' finished image and donate it to a charitable institution like the WWF (I have actually done that, so it is feasible). Let's say they decide they want to use the image on posters or cards or something which they wish to sell to make money.

No one has asked anybody for any kind of permission so far.

Model > Photographer > Shopper > Charity

Where do we each stand on credit?

Discuss:stare:

[Greg Vander Houwen]

Interesting senario but the whole thing scares me.

I'd would be looking to avoid credit on this one unless I was the model.

Seems to me that the photographer is fine until he "publishes" the images to the web. Although she is in a public place, she is the primary subject so I wouldn't publish an image of her without a release.

The other guy that could be in trouble on this you, if she remains the primary subject of your composite. It may be, that if she takes up more than 10% of the image she could have a case. I wouldn't use this unless the photographer claimed full legal rights to the image and licensed/sold them to me.

The WWF has a bunch of lawyers and even on free stuff would make sure to get a signed release from you. If they didn't they would be the best target for the model to seek compensation.

Maybe I've worked with big corps too long...

As to credit, without a paper trail it would be tough to give. Also if you give credit but have no paper then you are essentially saying they were involved but we have no agreement as to how. I'm scared again.

I don't know on this... no paper trail. Personally I wouldn't do this.

If it was a tree, no problem, they don't sue.

Greg

[Raphael]

That's what I meant, you see.

Because the whole scenario is a Legal minefield, everyone automatically thinks in legal terms (who could sue whom), especially Americans for some reason.

But my question isn't about legals.

Let's imagine a moment, a world without lawyers (Wahey!!!), that nobody could sue anybody, that the only people we had to answer to were those involved.

My feelings are that the charity should feel free to use the artwork as a "donation" provided they credit the people who have actually worked on the image. ie the Shopper and the Photographer. These have "invested" in the image.

I do feel however it would only be polite to contact the Photographer and deal with his personal predilictions on the subject.

The model however, I feel in these circumstances, should have no claim, even though she actually is the image, because she has invested neither time nor money on the project. She might as well charge everyone who looks at her, viewing fees, when she's in public.

Which all seems totally backwards to what you were saying regarding legal positions!?!?


I would also like to stress that this IS a hypothetical situation, that I personally wouldn't touch it with a 60ft pole, and that when I donated an image to WWF, whilst giving them written permission to use any rights I hold to the image, I also wrote that they would need to seek specific permission of the photographer.

Raphael

[swanky]

I am thinking there is a slim case of public domain here, at least as far as the shooter is concerned..but it is slim as it was not initially for news gathering..I think I would adjust a few facial features and fly... I mean if she is not recognizable then like who cares..and you likely have altered the shot enough, taken the backgrounds out, that it does not represent the original shooters shot in anyway...hey I am a shooter and hate the thought of all this crap going on, but the truth of the matter is it is the twenty first century and we gotta think in those terms...as soon as you post on the web, you loose all control no matter what...seems it is a can of worms, just seems to me the archiac laws that we are trying to apply to current technology just don't cut it....call me crazy but we gotta move along and laws and applications have to change with the times... in the mean time it is likely worth the risk..whatever that is...just my two cents worth...and you are right on this a can of worms it is...

[Greg Vander Houwen]

No Lawyers...

Okay. Then I would credit based on "unbiased" contribution. If I had shopped it to the point of non-recognition then I would take credit. If it was reconizable then the model and photographer should probably come into play.

btw: this reminds me of a battle cry me and my buddy Dave use to use...

Photoshop it to Hell!

He still has a few buttons around somewhere. Maybe we should make up a T-shirt. I briefly (very briefly) thought of using it for the site tag line ;)

greg

[swanky]

I think you should make bumper stickers.... I would put one on my camera box... right next to the one that says..." if you don't like logging try using plastic toilet paper." in fact you should make stickers and mail them to all registered users on your new shiney forum..think it is a great idea... :D

[Greg Gerla]

An interesting situation. But removing the legal aspects leaves only the moral aspects. Put yourself in the models shoes (high heels if that's your thing...:) )

The point is, this is not a photo of a tree. Perhaps the model should be given some consideration just as a matter of professionalism. The best thing to do would be to approach her at the park with a model release (which of course we all have in our gear bags). Who knows, maybe she'll be flattered and you can arrange a planned shoot for your charity donation...

There-no lawyers...

Greg

[Greg Vander Houwen]

Yes, this the way it should be handled.

"Perhaps the model should be given some consideration just as a matter of professionalism. The best thing to do would be to approach her at the park with a model release (which of course we all have in our gear bags)."

But in essence the release is bringing lawyers back into it, as, again I think it should be handled. At each stage there should be an agreement to allow the next party to use the imagery to protect and respect all involved. That is the professional way to handle it.

But Raphael's question point leads to credit for the image in a situation where credit has not been contractally defined, more of a moral or ethical question.

If the model was one person in a public crowd and was then isolated and used in the composite would that make a difference?

The subtlty of senarios like this, all legalities aside, lead me to think that credit should be based on contribution to the final image. Large contribution deserves credit. But without a clear agreement, it becomes a personal, ethical decision.

greg

[swanky]

not sure there is a clear answer..

[Stevos]

Ok, here's how I see it (my opinion matters jack)
A) You, the Photoshopist, deserve the bulk of the credit, you transformed the image into something that is more than the sum of the parts.
B) The Photographer deserves some credit, not much tho, because he is kind of a creep taking photos of pretty women without consent..
C) The Model..well, she certainly gets some for being pretty..but honestly, she really did nothing.

Legally, if she was bitchy, you'd be in trouble, but the Photographer would get in more trouble than you, after all..he is releasing such photos to the public, after that, they are public domain.. (especially since you didn't know that he didn't have permisison).

[swanky]

I think Stevos is right...hey it all is a big risk..what the hell..

[Raphael]

OK no lawyers is a bit far fetched.

So how's this?

The photographer took the picture 10 years ago never intending to use it in any commercial sense. It was part of a full roll he shot in the park of lots of different people to try out a funky new camera. so didn't bother with release forms or knowing who people were. 2 years ago the photographer, whilst "goin' hi-tech" and building himself a web .site, digs out these shots, can't remember where, why or who, says "They'll do." and sticks them on the site

The ’shopper (as my self) doesn't produce artwork for commercial purposes but just for the hell of it (’shop til you pop), had taken this shot off the web and has had it stuck in his 'Source' folder since then. When he comes to use the image, again, he can't remember where, why or who, so can't approach the photographer.

What then?

Raphael%'

[Stevos]

If you find the picture on the internet, with nothing saying that you cant use it, then go right ahead..

[dlz]

Originally posted by Stevos
If you find the picture on the internet, with nothing saying that you cant use it, then go right ahead..

One should always consider "stray artwork" on the web to be copyrighted unless otherwise noted. "I didn't know" is a bad excuse, according to any blood-thirsty lawyer.

In other words, if you find a pic on the Internet, with nothing saying that you can't use it -- still don't use it. Use it only if you can find a note saying you can use it... ;)

[nikhil]

well since you mentioned no lawyers .... india is a place where they're hardly given the time of day for a topic like one you've posed. (they make money in real estate here ... among others)

well i see mtv use a lot of street shots and the truth we really don't care. if we look good then hey free publicity. "I was on MTV" but seriously, it's a good example. people here don't expect to be paid for posing for a smiling in the park. the photographer uses the material to get a cool pic of indian street life. everybidy is happy.

cheers!

[David Anders]

Not the same situation, but...
One of my client/friends (a Photoshop artist) took a picture of a public artwork installed on a Seattle street, not noticing that the plaque had a copyright notice. Used the artwork as an element in a collage that was used in a yearly report by a big nonprofit. She noted the artwork and credited the artist that created the artwork. He sued, wanted $250,000 for fair use, legal wranglings took a year.

People were flown in from around the country to testify.
My client/friend was in hell for that year, and now knows more about the pitfalls of the legal system than she ever wanted to know. And had to sign a non-disclosure statement about the trial and award.

There is a Troll eating a volkswagen under one of Seattle's bridges (also with a copyright notice at the base). A real estate agent took a picture, used it in a postcard promotion and the sculptor was awarded several hundred thousand dollars from the agent and the real estate office... (this wasn't the first time he was awarded money in a suit)

My take on this was that the easiest way to make money with your art is to put it in the public view and sue people.%'

[swanky]

holy what a couple stories..but....just what the hell is this world coming too...this is way to out there for me..sorry..like what is it with artists anyway...are they like thinking they are the second coming and just starting to get their ducks in a row just in case they are right...damn...sorta take all the fun out stuff..guess it is just my small town backwoods hick ingnorance..but as far as I can see things are getting way to complicated anymore...am wondering if art is created for arts sake anymore??, oh well guess that is why this forum is called Can o Worms...cuz it sure the hell is..seems to be no right answer anymore..just seems to come down to who has the lawyers and the grit to stick it out...damn....well I am gonna go climb back in my cave now and not let anymore light or knowlege creep in through the cracks...bye..

[Raphael]

Way to go Tim, I'm with you.

To me, if you put you're work on public display, specifically for the public to appreciate it, how could you ever complain that they want to take photos???

When does stuff, especially statues, become a "Landmark" is mount Rushmore copyrighted, how about Mme Liberty herself, is Stonehenge a Druidic device for working out ancient copyright laws?:stare:

Careful there Sir Swanky does your cave have any cave paintings, does the artist's descendants (Estate) object to your viewing them without recompense?;}

Raphael:)

[Greg Gerla]

Wait a second, guys. I think you are forgetting the rights of the original artists in these situations. Just because a sculptor has a piece on a public street, or perhaps on the square of a private building, it doesn't mean it is free to be appropriated without permission. And a non-profit company doesn't mean the company isn't making any money. It just means it's not making a profit. So any publication it produces, does have commercial value.

I am a photographer, not a digital artist, so I'm pretty protective of what I create.

Even if an original piece of art is appropriated for a different piece of art, some consideration has to be given to the original creator. Especially if the derivitave work is published or displayed in some public forum.

As a photographer, and an artist, I have to stand behind copyright and argue against unpermitted usage.

[David Anders]

I do not know this for a fact, but I have been told...

That you can use photos of the Space Needle, IF the Needle is left in the Seattle skyline.
IF you take the Needle and put into a different mileau, you can be sued.

[swanky]

one more question...at what point or is there when this stuff should be public domain..especially with publically paid for art...I mean this is bull...a guy is paid with public money to create something for the public, yet he still owns it.....sorry...but that sounds like bulls..t to me...just cannot get my head wrapped around all this... I have been called an artist, but for sure a good part of my work I do not percieve as art...it is a job..no different than going to a factory..I am paid to produce an image by a client..he is gonna use that image to try and sell his product...ok lets say a truck..so he pays a few thousand dollars to get this image..then I gotta tell him he does not own it..he can only use it the one time he has hired me for..end of story..I then gotta store the images with hopes he will come back and want to do something else with it..yeah right?? ok another look...I buy a car...hey someone built, designed, the thing..I buy it, but then I cannot use it for going skiing cuz I did not say that when i bought it..dodge or whatever still owns it..ahhhh don't think so...ohhhhh but then guess that is not art is it..cuz it is an everyday thing...see sorry guess I am missing a chip here somewhere..I do however put it to the client that for sure I will work cheaper, if they want me to own the stuff and they cannot use it again after the initial use..guess what....they always go for the higher price..and how do you put a price on it..good question..so anyway this was supposed to be short..

[David Anders]

Have not read the entire thread...
TidBITs Copyright Thread (http://db.tidbits.com/getbits.acgi?tlkthrd=1528)

[theGuest]

My take on this is...



... that only the model has the last word on anything. It's HER likeness that is being used - without direct consent. No one else, in the end, has any say what-so-ever if she should decide to ask that her likeness not be used - for any reason.

[apo]

Now this were some useful threads ! I use to take the photos i need for my works in public places without to think to much about things like that ,now i will give more attention to this kind of "traps".

[Diane]

Absolutely fascinating thread and a real can o' worms! I am not a professional - serious hobbyist but nevertheless can see how this would seriously affect me in terms of publishing my Photoshop doodlings on the web.

I have so many photographs taken on my travels either locally or when we have been on holiday. It seems to me that I would have to be very careful what photos I could use in any of my photoshop work. And I have never thought about that before now. I have just assumed that because I took the photo, it belongs to me and I could do what I wanted with it! Ignorantly, I realise now!

I have learned so much in the very short time I have been at these forums. Extraordinary insight! Thank you all

Diane

[GodOfWar]

A very interesting thread. :thumbsup:

Personally speaking, I'm with Sir Mark on this. If someone were to publish a piece in which I'm the main subject, I'd certainly have something to say about it.

-GoW-