Bad copies, forgeries, and photograph reproductions.
Sunday, September 29, 2002 by UBoB | Discussion: WinCustomize Talk
I am still not clear on when copying becomes stealing. I ran into a situation at my work just last week.
A client came in wanting to put together a brochure. The brochure was to contain a picture that the client found on a well known online photograhy database, but the client did not want to pay the royalties to use the picture. At first, the client suggested using the .jpg sample from the site, but the resolution was to large that reproducing it in print would have had it looking all 'blocky' and 'pixelated'. So the client suggested another idea.
The client's next idea was to reproduce the photograph. The client suggested that they hire look-alike models, find a similar setting, and then pose the models in the setting and snap a photograph of their own. The client then proceeded to do this. The result was very close to the original photograph from the online photography database. Anyone looking closely would be able to see small differences, but for the most part, it was identical.
So, we used the new photograph in the brochure.
This situation got me to thinking. Often, we hear on this site how there are only so many variations on skin design that are possible, and thus, we are going to see more and more skins that bare a resemblence to others. Bad, second-rate copies of skins that were originally created by Masters are cropping up all over the site. They are allowed in because they are not direct bitmap-by-bitmap pasting of the Master's original. It does not seem to matter that they are copies, (albiet bad copies) of the Master's original.
If forgery of great art masterpieces is a crime then why isn't forgery of our local artistic works a crime? How come I can make something look like an existing skin, done by a Master, and as long as I haven't actually cut and pasted the Master's bitmaps into my new skin, but instead redrawn each bitmap, then it's not a crime? Even if it is a bad copy, bad forgery, or even a badly restaged photograph, why is allowed?
A client came in wanting to put together a brochure. The brochure was to contain a picture that the client found on a well known online photograhy database, but the client did not want to pay the royalties to use the picture. At first, the client suggested using the .jpg sample from the site, but the resolution was to large that reproducing it in print would have had it looking all 'blocky' and 'pixelated'. So the client suggested another idea.
The client's next idea was to reproduce the photograph. The client suggested that they hire look-alike models, find a similar setting, and then pose the models in the setting and snap a photograph of their own. The client then proceeded to do this. The result was very close to the original photograph from the online photography database. Anyone looking closely would be able to see small differences, but for the most part, it was identical.
So, we used the new photograph in the brochure.
This situation got me to thinking. Often, we hear on this site how there are only so many variations on skin design that are possible, and thus, we are going to see more and more skins that bare a resemblence to others. Bad, second-rate copies of skins that were originally created by Masters are cropping up all over the site. They are allowed in because they are not direct bitmap-by-bitmap pasting of the Master's original. It does not seem to matter that they are copies, (albiet bad copies) of the Master's original.
If forgery of great art masterpieces is a crime then why isn't forgery of our local artistic works a crime? How come I can make something look like an existing skin, done by a Master, and as long as I haven't actually cut and pasted the Master's bitmaps into my new skin, but instead redrawn each bitmap, then it's not a crime? Even if it is a bad copy, bad forgery, or even a badly restaged photograph, why is allowed?
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migellito
Reply #22 Monday, September 30, 2002 9:20 AM
Reply #22 Monday, September 30, 2002 9:20 AM
chef - also, pete fountain didn't claim he'd written it. that's the biggie 
if you look on cds where some band is covering somebody else's tunes, it will always say who it was written by.
same as performing music live, as a cover band in a bar. you don't pay royalties to anybody, but you also don't claim you wrote it yourself. metallica got their start playing covers of old queen and diamond head tunes in big-time bars like the whiskey in la remember though, bands who stay 'cover bands' never make it anywhere.
just as a basic artistic tenet, copying = lame.
motion:: duck and cover man..
if you look on cds where some band is covering somebody else's tunes, it will always say who it was written by.same as performing music live, as a cover band in a bar. you don't pay royalties to anybody, but you also don't claim you wrote it yourself. metallica got their start playing covers of old queen and diamond head tunes in big-time bars like the whiskey in la
remember though, bands who stay 'cover bands' never make it anywhere.just as a basic artistic tenet, copying = lame.
motion:: duck and cover man..
Lecrayon
Reply #23 Tuesday, October 1, 2002 10:06 AM
Reply #23 Tuesday, October 1, 2002 10:06 AM
When you take a fundamentalistic stance on what is copyright, after a while you will have a lot of people conducting cases against each other. You end up in a society written by Orwell. When it comes to art (and who defines art?) lots of things have been done over and over again. Lots of things have been painted, or photographed in a same kind of style. If you admire someone you will try to reach the same effects. If that is copying or stealing I am not sure if I want to live in such a society. It's blatant oppression. Not being able to express yourself is in contrast to the freedom of people. If I would make a collage of photographs I have collected from glossy magazines or newspapers, would I have to ask each photographer the permission to make the collage? Any extremistic answer on this question is to me an act of terrorism. I am not harming anyone, I am making an advertisement instead: Look at what this artist has made there and there. Look at his work! And I am so intrigued I wanted to do something the same. Now, if one is intended to publish someones work and make money out of it, that would be wrong. I still think copyright is about the protection for such activities. If you take a photograph in the same manner as a well known photographer, you have to add: inspired by photographer mr X. And if it is used for non-profit purposes there is even no gain. If mr X is going to sue here and sways with the copyright law, to me that one would be an ill person seeking some easy personal gain. My opinion. Will probably get a whole bunch of extremists over me now
bakerstreet
Reply #24 Tuesday, October 1, 2002 10:30 AM
Reply #24 Tuesday, October 1, 2002 10:30 AM
Lecrayon:
"...would I have to ask each photographer the permission to make the collage?"
yes, or you are breaking the law.
The law does not care if you make money off what you steal, it just says not to steal. If I steal a painting just to look at it, is it stealing? If I take the only commodity an artist has, and then give it away en masse, am I being fair to the artist? The magazine you scanned it from paid for the right to display that image, did you?
Call it terrorism if you like, but cutting and pasting other people's work does nothing to foster creativity, it just borrows other people's creativity. Barring that act doesn't touch any freedom you have. You still have the freedom to make your collage, but you don't have the right to distribute it.
If you do distribute frankenstein collages of other people's work, then you take away the right of the original artists to say who may create derivative works. Taking someone's rights away is far more akin to terrorism. The rights you are trying to protect don't exist, and have never existed, there's nothing to sway.
"...would I have to ask each photographer the permission to make the collage?"
yes, or you are breaking the law.
The law does not care if you make money off what you steal, it just says not to steal. If I steal a painting just to look at it, is it stealing? If I take the only commodity an artist has, and then give it away en masse, am I being fair to the artist? The magazine you scanned it from paid for the right to display that image, did you?
Call it terrorism if you like, but cutting and pasting other people's work does nothing to foster creativity, it just borrows other people's creativity. Barring that act doesn't touch any freedom you have. You still have the freedom to make your collage, but you don't have the right to distribute it.
If you do distribute frankenstein collages of other people's work, then you take away the right of the original artists to say who may create derivative works. Taking someone's rights away is far more akin to terrorism. The rights you are trying to protect don't exist, and have never existed, there's nothing to sway.
KarmaGirl
Reply #25 Tuesday, October 1, 2002 10:40 AM
Reply #25 Tuesday, October 1, 2002 10:40 AM
Motion, I know that DavidK pointed out a high profile case, but I don't think what you did is going to get you in trouble. I'm taking a business law class right now, and we just covered, copyright, trademark, trade dress and all that. I have also had many photography classes and covered the whole copyright issues of photography. What you did can probably be considered unethical, but if it is illegal would questionable. Copyright regulations on photography has changed. you can not copyright photographic intellectual property. You would have to set up the picture with the exact same models, lighting, surroundings, etc. for them to really claim it as a copyright infringement. Your picture is original (even though it was inspired by a similar photo) because it uses different people and was shot by you. I, personally, wouldn't do it, but I am pretty sure that if legal actions were taken against you, a fairly decent attorney could get the case dismissed.
Lecrayon
Reply #26 Tuesday, October 1, 2002 10:48 AM
Reply #26 Tuesday, October 1, 2002 10:48 AM
Well I am glad you said this KarmaGirl. I understand Bakerstreets' point of view and do agree on a few points he made. I like your society with set laws better though. 
bakerstreet
Reply #27 Tuesday, October 1, 2002 10:56 AM
Reply #27 Tuesday, October 1, 2002 10:56 AM
Lecrayon: read motion's post and then read yours. She wasn't talking to you. I said pretty much the same thing she did about motion's situation:
"My conclusion would be that the above is technically stealing, but only in such a esoteric way that it would be impossible to prove... "
Your question was:
"If I would make a collage of photographs I have collected from glossy magazines or newspapers, would I have to ask each photographer the permission to make the collage?"
The laws concerning this question are already set. You are taking one person's art, and giving it away without securing the right to do so, neither by asking or paying for it. Why should the magazine buy commercial art if you don't have to? You distribute it to just as many people on a skin site, if not more.
"My conclusion would be that the above is technically stealing, but only in such a esoteric way that it would be impossible to prove... "
Your question was:
"If I would make a collage of photographs I have collected from glossy magazines or newspapers, would I have to ask each photographer the permission to make the collage?"
The laws concerning this question are already set. You are taking one person's art, and giving it away without securing the right to do so, neither by asking or paying for it. Why should the magazine buy commercial art if you don't have to? You distribute it to just as many people on a skin site, if not more.
Lecrayon
Reply #28 Tuesday, October 1, 2002 11:03 AM
Reply #28 Tuesday, October 1, 2002 11:03 AM
With a collage mostly is meant: you tear up a lot of text, pieces of photographs, cut out photographs, cut them again into pieces and you end up with a total new lay-out, paint over it, glue new pieces of paper over it, etc...it's not something like neatly placing whole photographs in rows on a cardboard.
Lecrayon
Reply #29 Tuesday, October 1, 2002 11:07 AM
Reply #29 Tuesday, October 1, 2002 11:07 AM
By the way, these kind of collages are made by a whole lot of well known visual artists.
Carlitus
Reply #30 Tuesday, October 1, 2002 1:06 PM
Reply #30 Tuesday, October 1, 2002 1:06 PM
About collages, there's a reverse question:
There's a great site of news about digital area. One of their authors has made an article speaking about skinners, and he puts some screenshots of: a WB skins made by Adni, a wallpaper created by Lecrayon, and some of the Mormegil's icons. We -the skinners- are uploading our works in Wincustomize with this knowledge: we give permission to Wincustomize and Stardock to redistribute our pictures, and them -WC,Std- protects our intelectual rights.
The writer have our permission to put this screenshots without request permission to us?
Is he/she breaking the law?
Recently (this weekend) i received a request to use a screenshot with my icons. This man is right.
Lecrayon: a copy is good if it enhances the original, or create better variations. It is not good the plagiarism, or rip, or simply oportunism.
There's a great site of news about digital area. One of their authors has made an article speaking about skinners, and he puts some screenshots of: a WB skins made by Adni, a wallpaper created by Lecrayon, and some of the Mormegil's icons. We -the skinners- are uploading our works in Wincustomize with this knowledge: we give permission to Wincustomize and Stardock to redistribute our pictures, and them -WC,Std- protects our intelectual rights.
The writer have our permission to put this screenshots without request permission to us?
Is he/she breaking the law?
Recently (this weekend) i received a request to use a screenshot with my icons. This man is right.
Lecrayon: a copy is good if it enhances the original, or create better variations. It is not good the plagiarism, or rip, or simply oportunism.
bakerstreet
Reply #32 Tuesday, October 1, 2002 2:45 PM
Reply #32 Tuesday, October 1, 2002 2:45 PM
According to the US Copyright office:
"Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports."
So references in a 'news' type article would be fine. Also, if someone is reporting news, and there is a tradmarked/copywritten logo or whatnot in the background, it is considered incedental and is legal as well.
"Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports."
So references in a 'news' type article would be fine. Also, if someone is reporting news, and there is a tradmarked/copywritten logo or whatnot in the background, it is considered incedental and is legal as well.
Jafo
Reply #33 Tuesday, October 1, 2002 6:15 PM
Reply #33 Tuesday, October 1, 2002 6:15 PM
The difference between 'physical' art and on-line digital art, with regards to 'collages' is that when the 'physical' media artist cuts up a magazine, creating his 'work', he subsequently would be likely to display it in a gallery, on a wall.
This has been going on since Adam was a pup and could be argued that it is of insignificant difference to a physical 'still-life'...a 'real' bowl of fruit on a table.
Digital 'collages' displayed on a web-site, however, are quite a different kettle of fish, in that their 'display' facillitates their duplication/distribution.
By downloading, suddenly there are more 'actual' copies of an image that was originally created by another, and this specific distribution/dissemination was not agreed to by the photographer/artist when submitted to the magazine from whence the images were taken.
Same situation applies to any and all 'artwork' uploaded to a facility for duplication/reproduction/distribution....such as a web-site.
That's why we say...'yes, do what you like with skins/art on your own comp, but if it ain't yours to upload, don't.'...
This has been going on since Adam was a pup and could be argued that it is of insignificant difference to a physical 'still-life'...a 'real' bowl of fruit on a table.
Digital 'collages' displayed on a web-site, however, are quite a different kettle of fish, in that their 'display' facillitates their duplication/distribution.
By downloading, suddenly there are more 'actual' copies of an image that was originally created by another, and this specific distribution/dissemination was not agreed to by the photographer/artist when submitted to the magazine from whence the images were taken.
Same situation applies to any and all 'artwork' uploaded to a facility for duplication/reproduction/distribution....such as a web-site.
That's why we say...'yes, do what you like with skins/art on your own comp, but if it ain't yours to upload, don't.'...
Lecrayon
Reply #34 Tuesday, October 1, 2002 6:37 PM
Reply #34 Tuesday, October 1, 2002 6:37 PM
Jafo, in other words, you are saying: you can make a collage physically and display in a gallery, but if you scan in the collage and display it online you violate copyright? I feel so ignorant on this subject.
bakerstreet
Reply #35 Tuesday, October 1, 2002 7:01 PM
Reply #35 Tuesday, October 1, 2002 7:01 PM
in my opinion, if you make a collage and hang it in your house, you are within your rights. You are using an object you purchased. If you hang it in a gallery as a work of your own, you are abusing the rights of others, i.e. displaying their work in a way that they did not have the opportunity to approve, and in a way that creates confusion between your artistry and theirs. If it were not for their work, your collage would not exist. If the snipped images weren't of importance, you'd take your own. So, there must be a inherant reason to use those particular images, right?
Like the Jazz discussion above, artists give other artists a lot of leeway when they are treated respectfully. Jazz often revolves around taking melodies and making them your own through improvisation, and sharing happily exists. I don't doubt that such photocollages exist, and that no one threw fits about it.
What we were talking about, though, was the legality of it. The law states that only the holder of a copyright may designate someone to create a derivative work. Will the police come and get you? Not likely, but you are at the mercy of the owner of the copyright if they find out, and most people would rather have permission and credit their work appropriately than risk being forced civilly to pay what the artist is normally paid for a piece. I doubt many of us could afford it.
Like the Jazz discussion above, artists give other artists a lot of leeway when they are treated respectfully. Jazz often revolves around taking melodies and making them your own through improvisation, and sharing happily exists. I don't doubt that such photocollages exist, and that no one threw fits about it.
What we were talking about, though, was the legality of it. The law states that only the holder of a copyright may designate someone to create a derivative work. Will the police come and get you? Not likely, but you are at the mercy of the owner of the copyright if they find out, and most people would rather have permission and credit their work appropriately than risk being forced civilly to pay what the artist is normally paid for a piece. I doubt many of us could afford it.
Jafo
Reply #36 Tuesday, October 1, 2002 7:22 PM
Reply #36 Tuesday, October 1, 2002 7:22 PM
Lecrayon...effectively, yes.
A physical collage is a single item...an online collage scan is replicated each time it is even viewed, whether saved to disc or not.
Baker is right in that the gallery collage is using the images without approval, but their use/misuse is not compounded by duplication and distribution.
It 'could' be argued that the rights of the photographer were 'sold' to the magazine...the artist purchases the magazine and with it 'tenuous' rights to 'enjoy' the physical manifestation/product...that is, the printed magazine paper...the 'physical' entity.
It's not 'distribution' of a photograph, but a 'public' display of a privete-use license...and a bit 'greyer' to argue/defend.
More than likely, it's just not worth pursuing to any degree legally and has become common practise.
Remember, the solid, physical collage is not a duplication of the physical image, just a re-association of it...
A physical collage is a single item...an online collage scan is replicated each time it is even viewed, whether saved to disc or not.
Baker is right in that the gallery collage is using the images without approval, but their use/misuse is not compounded by duplication and distribution.
It 'could' be argued that the rights of the photographer were 'sold' to the magazine...the artist purchases the magazine and with it 'tenuous' rights to 'enjoy' the physical manifestation/product...that is, the printed magazine paper...the 'physical' entity.
It's not 'distribution' of a photograph, but a 'public' display of a privete-use license...and a bit 'greyer' to argue/defend.
More than likely, it's just not worth pursuing to any degree legally and has become common practise.
Remember, the solid, physical collage is not a duplication of the physical image, just a re-association of it...
Lecrayon
Reply #37 Wednesday, October 2, 2002 6:30 AM
Reply #37 Wednesday, October 2, 2002 6:30 AM
Hmmm I am beginning to understand. Still there are a few questions left. When a physical collage is a re-association of several cut up images/photographs you might argue it is new work. If so, you are entitled to scan (duplicate) and put it online. If it is seen as derivative work I perfectly understand the illegality of it. Now where does one draw the line where it is new work or derivative?
Lecrayon
Reply #38 Wednesday, October 2, 2002 6:58 AM
Reply #38 Wednesday, October 2, 2002 6:58 AM
Quote from a friend: "When you take several pieces and put that together in such a way it forms a new image, and don't take one piece as the core of the image, every talk about being such a new image as being copyrighted is talk of a drunken strawberry". End of quote....
bakerstreet
Reply #39 Wednesday, October 2, 2002 7:03 AM
Reply #39 Wednesday, October 2, 2002 7:03 AM
If a work contains previous work by another artist it is derivative, unless the collected images are incedental, like in the 'news item' discussion. People confuse 'fair use' and 'derivative'. If you featured a wadded-up newspaper, for instance, whatever was written on it would most likely be incedental. If, though, a noteworthy photograph is staring out at you from the newspaper, and it impacts the work, then it would be derivative. (though you could claim it was incedental...) The definition of "derive" is:
a : to take, receive, or obtain especially from a specified source
b : to obtain (a chemical substance) actually or theoretically from a parent substance
The key word there is 'specified', i.e. choosing a particular item purposefully. A collage is pretty much dependant on the images that have been put together, so I would think it would be hard to claim incedental inclusion. Sure, you might need a generic picture of a any car, but the image you choose still has a great impact on the work. If you need generic images you could take them yourself. The only way that I can see for images to ever be used without permission is 'fair use', and works of art usually don't fall into that unless they are forms of parody, or maybe political commentary. Even in those case I think the responsible (and safe) thing to do is to get permission.
Lets not forget that even when you are right, and a good lawyer can prove it, you still have to pay for a good lawyer, and that can be a lot more than what you would owe for the rights to an image. I would suggest removing all doubt when at all possible.
a : to take, receive, or obtain especially from a specified source
b : to obtain (a chemical substance) actually or theoretically from a parent substance
The key word there is 'specified', i.e. choosing a particular item purposefully. A collage is pretty much dependant on the images that have been put together, so I would think it would be hard to claim incedental inclusion. Sure, you might need a generic picture of a any car, but the image you choose still has a great impact on the work. If you need generic images you could take them yourself. The only way that I can see for images to ever be used without permission is 'fair use', and works of art usually don't fall into that unless they are forms of parody, or maybe political commentary. Even in those case I think the responsible (and safe) thing to do is to get permission.
Lets not forget that even when you are right, and a good lawyer can prove it, you still have to pay for a good lawyer, and that can be a lot more than what you would owe for the rights to an image. I would suggest removing all doubt when at all possible.
Lecrayon
Reply #40 Wednesday, October 2, 2002 7:20 AM
Reply #40 Wednesday, October 2, 2002 7:20 AM
"Sure, you might need a generic picture of any car, but the image you choose still has a great impact on the work"
I agree with you there bakerstreet, so when you make sure it hasn't got the impact, but just fills in for the totality of the collage, it is derived, but it's only part of a new work. If I take 10 worldpressphoto's, put it through a shredder, put acrylbinder on paper and let the shredded pieces fall on it, sure it is derived, but
the new image hasn't got anything to do with the photographs. Therefore it isn't copyrighted. Same goes for a photograph of a car, you cut it into pieces, let it fall on paper..you get a new image...
I agree with you there bakerstreet, so when you make sure it hasn't got the impact, but just fills in for the totality of the collage, it is derived, but it's only part of a new work. If I take 10 worldpressphoto's, put it through a shredder, put acrylbinder on paper and let the shredded pieces fall on it, sure it is derived, but
the new image hasn't got anything to do with the photographs. Therefore it isn't copyrighted. Same goes for a photograph of a car, you cut it into pieces, let it fall on paper..you get a new image...
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Reply #21 Monday, September 30, 2002 12:04 AM