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Odd copyright question with photography implications
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Dec 13, 2019 18:41:29   #
Bill_de Loc: US
 
My ex is a Disney fan. Years ago I made plywood cutouts of Mickey and friends, plus Santa. She painted all of them. They ranged from 3 to 4 feet tall and made a hit in the neighborhood every Christmas. One day a guy from Disney came to the door and said we needed to remove all but Santa. He was very polite and explained their reasons. I invited him in and showed him the plans with cut out 35mm slides in the Popular Mechanics, Do it Yourself Encyclopedia. The article and plans were provided by Fred MacMurray {my Three Sons} for Disney.

He apologized and asked permission to take pictures.

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Dec 13, 2019 22:14:57   #
artBob Loc: Near Chicago
 
AzPicLady wrote:
According to two lawyers who spoke to our art league, any copy of any type (such as a painting of a photo) is a violation of copyright. If the photographer gives permission, then it does not violate copyright, but it cannot be called an original. Such paintings should be called "studies of" and name the original work.

What is interesting in this matter is that almost no photographer would claim a photo of someone's painting to be an original. But painters believe that they can copy a photo and call it an original.

The lawyers reminded the painters that simply changing a few things didn't make the painting an original. If they copied any portion of a photo, it was a COPY, not an original.
According to two lawyers who spoke to our art leag... (show quote)

That's just not true--it's much more complex. Basically, copying a part of a photo can be legal. Read on:
“How Copyright Law Protects Creators of Original Works

“Copyright law gives content creators certain exclusive rights to reproduce and sell works. These exclusive rights, conferred by 17 U.S.C. § 106 of the Copyright Act of 1976, include the rights to reproduce, perform, and distribute the copyrighted work. As a basic example, if you write a book, another person cannot come along and photocopy and sell that book without your permission.

“When these rights are infringed, copyright owners can file a lawsuit seeking money damages for infringement as well as a court injunction to mandate that the infringer cease its infringing activity.

“As you can imagine, copyright law is therefore an important tool for visual artists. Imagine if you spent months painting a beautiful landscape painting, only to have someone else come along and make posters of the image, selling those posters all over town without permission. Surely you would be angry, as this infringer has essentially taken your work for his or her own profit without permission.

“In order to sue for copyright infringement, you must register your work with the 17 U.S.C. § 107, certain uses of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." As a matter of policy, fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.

“When faced with a copyright dispute over fair use, a court will consider four factors regarding the infringer's use of the copyrighted work to determine whether the defense applies. These factors are: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

“Consider these fair use factors in connection with the photographic collage example above, in which you seek to use a photo of a building taken by a third-party photographer in your landscape painting. Your use of the photograph would be commercial only if you intend to sell the painting. If you intend to merely keep it or display it in your home, there is no commercial element. Moreover, even if you do intend to sell it, the photograph represents a relatively minor portion of the total work. If you are using only a small part of the photographer's photo of the building, that would weigh in your favor; if you are using the entire photo, that could weigh against you. Finally, looking at the last factor, if your use of the photo would impact sales of the photograph (and therefore harm the photographer), that would weigh against your use. However, that seems unlikely here. Few people would buy your painting instead of the discrete photograph, and vice versa. On balance, it seems your use of the photo in your collage would constitute fair use.”
https://www.nolo.com/legal-encyclopedia/can-i-alter-or-make-art-from-books-prints-other-copyrighted-works-without-getting-sued-for-infringement.html

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Dec 14, 2019 08:07:07   #
AzPicLady Loc: Behind the camera!
 
I think I'll continue to believe what the lawyers who work daily with these issues have to say on the matter. And, you can sue for damages even if you haven't registered your photo. You just have more of a leg to stand on if you do.

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Dec 14, 2019 10:05:40   #
artBob Loc: Near Chicago
 
AzPicLady wrote:
I think I'll continue to believe what the lawyers who work daily with these issues have to say on the matter. And, you can sue for damages even if you haven't registered your photo. You just have more of a leg to stand on if you do.


Actually, a few experts in any field may not be adequate. Doing research with primary sources is important if this is going to be an issue for you. If those lawyers gave you the last bit, I really would doubt them. The fact is, if you register your copyright you can sue for punitive damages besides the financial damages that are allowed if you have not registered.

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