Copyright infringements...

[Skeeter]

I'm a member of a very small purebred dog club (less than 100 members across the country) and as part of our membership fees we receive a rather modest quarterly magazine. This is a non-profit club and the magazine is not for sale and only available to club members.

Getting to my question...the magazine editor emailed me a jpeg of a painting of a dog and asked me to emmulate it to use for our Spring cover. I was able to do this using a picture of my own dog (that I took) in a similar position and with a similar expression. The overall layout and appearance of my "version" is pretty much identical to the artists work (similar effect, different dog).

I'm relatively certain that this is a copyright infringement and am hesitant to use it, hence my visit to the forum! Can I use it or is it a copyright infringement?

Thanks in advance,

Kim

[efarnstrom]

But I can't think of any reason why you would be stepping on anyone's toes doing your own photo of a similar layout....if you call it your own and don't try to pass it off as original.

[Edmund]

Kim, Welcome to the forum. I don't see any problem. First it is a image of your dog. You edited your own image with a technique, a look, that was charactistic of the painting. Lets say the painting had a DUOTONE look now you took a image of your dog ,converted to Duotone so what. no problem. IMHO
Eddie:)

[Skeeter]

But I can't think of any reason why you would be stepping on anyone's toes doing your own photo of a similar layout....if you call it your own and don't try to pass it off as original.

Well, I copied the idea...nothing else. Anyone else know if I'm ok to use my peice?

I guess a lot of what we do in photoshop is inspired by other people's work...just wondering where the "line" is...

[Joe M]

Here is a good source (http://www.copyrightdefense.com/) for information on photographic copyright law.

My first thought on your question is that it's not copyright infringement.

[genevh]

I guess a lot of what we do in photoshop is inspired by other people's work...just wondering where the "line" is...

I agree with the others. Its your dog, your picture, and your editing, so there should be no problem. And if we had to worry about every time we used the same effect on a photo as someone else, none of us would be able to do anything. Now...if you had been asked to adapt the supplied jpeg for the magazine, that would be a different story.

[Cloud]

Kim,

Would the context and/or it's style mean that it could be mis-recognised as the original. I'm not sure sure if that's copyright law or not, but I think you do need to be careful about misrepresentation.

For example if it's an obvious copy of the front cover of another magazine then that could be a problem. Or, if readers could possibly think your version was the original, then it could be construed as misrepresentation. Putting it on the cover could make it worse due to lack of overt creditation.

However, if it's clearly another dog, and only a similar technique I can't see there world be any problem.

[Skeeter]

Kim,

Would the context and/or it's style mean that it could be mis-recognised as the original. I'm not sure sure if that's copyright law or not, but I think you do need to be careful about misrepresentation.

No, the dogs are visually different from each other (same breed, mind you). The artists dog is painted in a way that the dog almost looks like a cartoon character, and it is a different colour. In my version it is very obvious that it's a photo with effects added to it (and not even "paint-like" effects, just effects to make it look like art rather than a photo).

For example if it's an obvious copy of the front cover of another magazine then that could be a problem. Or, if readers could possibly think your version was the original, then it could be construed as misrepresentation. Putting it on the cover could make it worse due to lack of overt creditation.

What the artist is selling are prints from an original painting. I doubt it has been, or will be, used in any other way.

However, if it's clearly another dog, and only a similar technique I can't see there world be any problem.

Could this be considered disrespectful to the artist?

[Skeeter]

Thanks for the other replies as well!

I think we will go ahead and use it ;)

[frank abramonte]

Two ways of resolving your problem, instead of worrying about it.
1. Pay a small fee for a legal opinion.
2. Contact the magazine and get a written release.

[Zeria]

From what I have read --- This is not a black or white issue. A copyright owner has the right to create adaptations based on their protected works (called derivative works). If the copyright owner feels you have infringed on his rights, he could take legal action or he could send a cease and desist letter or do whatever. If he takes legal action (you will need a lawyer), the court will decide whether it is infringement.

If you feel uncertain, get legal advise.

Here is a very brief description (http://www.rightsforartists.com/copyright.html) of derivative works. Scroll down this page and the next to last question is:

Can't I take an image and change it to make it mine?

Good Luck

[snidely]

Hi,
There's no possible copyright issue here, otherwise nobody else can ever make a picture of a dog that even remotely resembles the dog in question here.

Copyright does not apply to poses or techniques, otherwise there would be only one oil painting, one head shot, one marble bust. If you attempt to make money by selling the work of another artist as your own, you're violating copyright.

I have a portrait of my father that I made into a sketch. He's posed the same as General Eisenhower was on the cover of Time Magazine, back during WWII. Guess what? I didn't ask Time's permission, or Ike's or even my father's.

Don't pay anybody anything. Don't get a legal opinion. Your work is entirely different from the other except for the fact that both feature dogs. You can't copyright a dog.

Take pride in the fact that you've been asked to do this picture. Don't go looking for problems.

Steve

[mrod]

I've been told by people in the publishing industry that words and images are copyrightable; ideas, techniques, etc. are not. According to those I've spoken with, as long as you're not using their image, or copying their words, you're OK.

I'm not a lawyer, or an expert, so don't take this as authoritative, but I do consider the sources of this info informed and reliable.

Mike

[frank abramonte]

I can't believe all the advice being offered by people who do not have the credentials to give this advise.
If and when you are asked to appear in court it will be your responsibility to defend your actions at your expense.
Again, your answer can be free by getting a written release from the magazine.

[Skeeter]

Again, your answer can be free by getting a written release from the magazine.

Hi Frank,

I'm not sure what you mean by the above...if my club provided a release to myself then they would be prepared to assume responsibility for any potential legal action?

Honestly, this is just a silly little magazine about dogs of our particular breed in our particular community (which happens to cover all of Canada). It is produced in black and white. There is no monetary value, in fact, the club probably takes a loss to produce it. SO, if there is any question as to whether there is a copyright infringement then the image will not be used...it's a fun image, but it's really no big deal.

Thanks again for the input!

[snidely]

your answer can be free by getting a written release from the magazineExcuse me, but, a release to do what? Make a magazine cover? Use a picture of a dog?Dear Magazine, I want to make a picture of a dog to put on my magazine cover. Do you mind?It's well established that Skeeter is using her own photo, a different technique, and the only similarity is that they're both pictures of dogs.

Does anybody else remember the "make a magazine cover" threads and tutes we've seen here? Anybody been sued? Anybody gone to jail?

All this nonsense about releases is just silly. By asking for a release, you're implying that you think you're using their work.

Steve

[GrafxEditor]

Hi Skeeter,

I appreciate your caution, but you can relax. What you are doing is definitely NOT a copyright infringement. Ideas are not copyrightable. Can you imagine if they were? The courts would have to run 24/7.

In this example, someone could come along and sue the photographer you drew your inspiration from, asserting that s/he published his/her photograph in a calendar first. We're a litigious enough society as it is; there would be no quelling that tsunami of copyright infringement suits. So it is well within your rights to his idea and then try it out on your own ... with your own dog, backyard, etc.

Also, someone said something about derivative works. That's a separate issue altogether that only protects the original photographer's actual image. So let's say I bought your image. Now that I own it, I could use it to create derivative works, such as a promotional brochure or on the home page of my website.

I hope this clears up any lingering questions.

Annie

[frank abramonte]

Steve, read Sceeters' original concern:

I'm a member of a very small purebred dog club (less than 100 members across the country) and as part of our membership fees we receive a rather modest quarterly magazine. This is a non-profit club and the magazine is not for sale and only available to club members.

Getting to my question...the magazine editor emailed me a jpeg of a painting of a dog and asked me to emmulate it to use for our Spring cover. I was able to do this using a picture of my own dog (that I took) in a similar position and with a similar expression. The overall layout and appearance of my "version" is pretty much identical to the artists work (similar effect, different dog).

I'm relatively certain that this is a copyright infringement and am hesitant to use it, hence my visit to the forum! Can I use it or is it a copyright infringement?

Thanks in advance,

Kim

To be safe you would need permission from the magazine and the painter, which they would probably be happy to give to a small nonprofit publication.

Sceeter, if you were concerned about this then why are you suddenly trying to find justification for not protecting yourself. Even if your magazine gave you a release that doesn't mean that you would not be included in any suit. In a law suit they usually include everyone, because they don't know who the court will allow or disallow and who has the money.

One missing fact is just how close is your cover to the one you were asked to copy? Can you post a copy so that we can make a better judgement.
Normally all parts of a magazine are copyrighted including the covers.

[GrafxEditor]

Steve, read Sceeters' original concern:



To be safe you would need permission from the magazine and the painter, which they would probably be happy to give to a small nonprofit publication.

Sceeter, if you were concerned about this then why are you suddenly trying to find justification for not protecting yourself. Even if your magazine gave you a release that doesn't mean that you would not be included in any suit. In a law suit they usually include everyone, because they don't know who the court will allow or disallow and who has the money.

One missing fact is just how close is your cover to the one you were asked to copy? Can you post a copy so that we can make a better judgement.
Normally all parts of a magazine are copyrighted including the covers.

Ironically enough, posting a copy of the magazine cover here without the company's permission would be a copyright infringement. I would caution you against doing that.

If you want to email me both images to look at, I'd be happy to look them over. But, like I said, this is not a case of copyright infringement.

And, Frank, I do not see Skeeter trying to justify her actions; it appears to me that she's simply trying to align them with copyright law. We need to be careful of tone in forums like this and avoid castigating people in our responses. Thank you for your consideration in this matter.

Warm regards,
Annie

[snidely]

Frank,
I read Skeeter's original post, thank you, and I still don't see an issue. "Emulate" does not mean "copy".

As Ms Cushing points out, the idea to pose a dog in a certain way is not a copyright issue, nor is the idea to manipulate the photo into a graphic copyrightable.

I mentioned in my first post to this thread that I made a picture of my father that was similar to a pose I've seen on a magazine cover. Am I a copyright violator? As Ms Cushing mentioned in more detail, there aren't enough lawyers to chase down everybody who's ever done anything anywhere at any time. I could make a fortune suing people, but then I'd pay it out to everybody who sued me.

Later today, I plan to photograph my wife using a lighting effect that I saw in Annie Leibovitz' A Photographer's Life. In PP, I may use a trick I learned in the PSE Techniques tutorials, too. I'll be sure to wear Nose Glasses and a beret so nobody will know who I am. That should protect me from the thought police :D

Life's plenty tough enough without mountainizing molehills.

Steve

[frank abramonte]

Sorry I suggested any solutions. However, the first thought was that the magazine asked that Skeeter make a cover similar to the magazine cover they made a jpeg of (GrafxEditor agrees). The intention was to copy and/or emulate the cover.
All this posting back and forth because Skeeter doesn't consider contacting the magazine and the artist. All it would take is 2 letters.
The only way anyone posting suggestions can guarantee the legality of their advice is take responsibility for any consequences.
If your not positive then don't give advice.
Annie, this was not just an idea it was a published cover showing a pose and technique created by another artist. Again the only way to tell is for an expert to determine if there is enough difference not to be an infringement.

[Skeeter]

Steve, read Sceeters' original concern:
Sceeter, if you were concerned about this then why are you suddenly trying to find justification for not protecting yourself. Even if your magazine gave you a release that doesn't mean that you would not be included in any suit. In a law suit they usually include everyone, because they don't know who the court will allow or disallow and who has the money.

Whoa...I'm not trying to justify anything...and I'm not sure why the tone has changed to one of an "attack" on my person. I am an average hobbyist making an inquiry so as to avoid doing anything illegal.

I stated quite clearly that if there was any doubt of a copyright infringement then the peice I did would NOT be used. And to clarify, I copied the idea using my own photo of my own dog. The artists version is a painting...mine is a manipulated photo.

I also think there is some confusion between the artist and the "magazine"...there is no connection between the two. And the "magazine" is more like a "mom & pop" newsletter that goes out to our membership (as I mentioned earlier, less than 100 members across Canada)...it is not a "publication", per se.

Anyway, Annie...I will email you copies of the peices in question. I won't be be posting either to the forum. That said, I do appreciate the interest in the thread, and the input.

Kim

[Skeeter]

Sorry I suggested any solutions. However, the first thought was that the magazine asked that Skeeter make a cover similar to the magazine cover they made a jpeg of (GrafxEditor agrees). The intention was to copy and/or emulate the cover.

No, you've misunderstood Frank. The original painting is available to purchase online as a print...the lady who puts our magazine/newsletter together linked me to it and asked if I could emulate it as she thought it was cute. It has never been on a cover of ANY magazine...so it's not a case of one magazine copying the cover of another magazine.

All this posting back and forth because Skeeter doesn't consider contacting the magazine and the artist. All it would take is 2 letters.

To be honest, Frank, it's not even remotely worth the effort. This has been blown all out of proportion. This is a stupid little quarterly newletter for enthusiasts of our particular breed. It is not a "publication"...just a means of connecting people and letting them know what is happening with the breed across the country.

Annie, this was not just an idea it was a published cover showing a pose and technique created by another artist. Again the only way to tell is for an expert to determine if there is enough difference not to be an infringement.

Where are you getting this information, Frank??? I never said that the artists work was used on a cover anywhere!!!

[GrafxEditor]

Sorry I suggested any solutions. However, the first thought was that the magazine asked that Skeeter make a cover similar to the magazine cover they made a jpeg of (GrafxEditor agrees). The intention was to copy and/or emulate the cover.
All this posting back and forth because Skeeter doesn't consider contacting the magazine and the artist. All it would take is 2 letters.
The only way anyone posting suggestions can guarantee the legality of their advice is take responsibility for any consequences.
If your not positive then don't give advice.
Annie, this was not just an idea it was a published cover showing a pose and technique created by another artist. Again the only way to tell is for an expert to determine if there is enough difference not to be an infringement.

Frank, thank you for your concerns for Skeeter's welfare. I outlined the principles of copyright infringement for the sake of others with similar questions. This question of copyright infringement is a common one, and there are a lot of misconceptions about it. Integrity dictates caution; however, at the same time, copyright laws weren't intended to extinguish creativity.

I have also offered to look over both images for Skeeter, which would enable her to get specific input, if she so desires.

I think this poor horse has been beaten enough. How about we let it go and move on to more scintillating topics ... like learning Elements? :cool:

Thank you to everyone who contributed their thoughts.

Annie