Digital BW, The Print

Here is another issue concerning the use of images that just came up again
for me.

 

A painter, who is also an instructor, has asked permission to use my images,
"as reference for my oil paintings .(for composition value, etc.) not
reproducing in any means other than for original oil paintings."

 

I'm not sure there is any way to stop this when images are on the web.
Also, under "fair use" the images probably can be used in the way he is
suggesting, although I have not researched this.

 

Incidentally, here is a site on Copyright and Fair Use that may be useful:
http://fairuse.stanford.edu/

 

I'm not even sure it's wise to try to stop virtual copying.  If in a
workshop he spreads the name as well as the concept of the images, does that
do more good than harm?

 

Paul

www.PaulRoark.com <http://www.paulroark.com/>  



[Non-text portions of this message have been removed]

> Here is another issue concerning the use of images that just came up again
> for me.

And on a tangential note...I'm not sure there is anything you can do
(legally that is) about someone linking to your images, or providing a
URL...it's just like saying "drive by 126 BeebleBrock Road and check out
their new Mustang GT..." or something like that.  If a reference is visible
to the public, it's tough to limit who looks at it/references it.

Regards,

Austin

Paul Roark writes:

> I'm not sure there is any way to stop this when images are on the web.
> Also, under "fair use" the images probably can be used in the way he is
> suggesting, although I have not researched this.

A great deal depends on how much the finished paintings resemble your
original photos, and how original your photos are.  An impressionistic
painting of a landscape that is commonly photographed, based on your
photo, would probably not be an infringement.  A photorealistic painting
based on a photo of yours that is very unique would almost certainly be
an infringement.

There are no hard and fast rules in the world of intellectual property,
and every lawsuit is a roll of the dice.

> I'm not even sure it's wise to try to stop virtual copying.  If in a
> workshop he spreads the name as well as the concept of the images, does that
> do more good than harm?

That's up to you to decide.

--- In DigitalBlackandWhiteThePrint@yahoogroups.com, "Paul Roark"
<paul.roark@v...> wrote:
> Here is another issue concerning the use of images that just came up
again
> for me.
> 
> A painter, who is also an instructor, has asked permission to use my
images,
> "as reference for my oil paintings .(for composition value, etc.) not
> reproducing in any means other than for original oil paintings."  
> 
> I'm not sure there is any way to stop this when images are on the web.
> Also, under "fair use" the images probably can be used in the way he is
> suggesting, although I have not researched this.

OTOH, a few years ago, Jeff Koons was sued (successfully as I recall)
for using a photograph from a greeting card as the basis for a
sculpture. He pretty much 'copied' (rendered in 3D) the scene in the
photo, which was a man holding a dog while sitting on a park bench.

Jim Zall

jzall wrote:

>--- In DigitalBlackandWhiteThePrint@yahoogroups.com, "Paul Roark"
><paul.roark@v...> wrote:
>  
>
>>Here is another issue concerning the use of images that just came up
>>    
>>
>again
>  
>
>>for me.
>>
>>A painter, who is also an instructor, has asked permission to use my
>>    
>>
>images,
>  
>
>>"as reference for my oil paintings .(for composition value, etc.) not
>>reproducing in any means other than for original oil paintings."  
>>
>>I'm not sure there is any way to stop this when images are on the web.
>>Also, under "fair use" the images probably can be used in the way he is
>>suggesting, although I have not researched this.
>>    
>>
>
>OTOH, a few years ago, Jeff Koons was sued (successfully as I recall)
>for using a photograph from a greeting card as the basis for a
>sculpture. He pretty much 'copied' (rendered in 3D) the scene in the
>photo, which was a man holding a dog while sitting on a park bench.
>
>  
>
An important part of the Koons case was that the court determined his 
work was not protected fair use as it was primarily commercial.

Section 107 of the Copyright act applies:

"The fair use of a copyrighted work, including such use by reproduction 
... for purposes such as criticism, comment, news reporting, teaching 
(including multiple copies for classroom use), scholarship, or research, 
is not an infringement or copyright.""

Four factors are then considered by courts in balancing this:

"1) the purpose and character of the use, including whether such use is 
of a commercial nature or is for non-profit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the 
copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the 
copyrighted work."

Ernst's translations of published articles, for example, and providing 
them to the list, almost certainly fall into the fair use provisions. 

Basically, the Supreme Court has used established a judgment of whether 
a use is predominantly commercial:  Jeff Coons.. or protected 
commentary/parody:  the nude Barbie case. 

It's a real world test.  And it makes sense in face of First Amendment 
values of free speech.  The courts will generally allow uses that 
educate, or critique, even if you make money from them. If they didn't, 
how could you ever read things like fair movie or theatre reviews? OTOH, 
if a court finds your purpose is not a protected use, and you are simply 
copying or creating a clearly derivative work in another medium with the 
intent of making $  you're gonna get slammed in all likelihood.

IN your case Paul, can you stop it?  No, one cannot realistically expect 
to STOP mis-appropriation a priori.. BUT, if you have a registered 
copyright, AND the work is clearly derivative, AND the work is not a 
protected fair use (which it doesn't seem to be) AND you discovered the 
images.... You would be entitled to statutory damages.


 
Keith Krebs

"Just some guy," caretaker of the Multiverse's largest EPSON printer 
User Community (highly recommended by Vogon Poets and MegaDodo 
Publications), at:
http://groups.yahoo.com/group/EPSON_Printers/
and  the Multiverse's largest Canon printer User  Community at:
http://groups.yahoo.com/group/Canon-printers
"For the rest of you out there, the secret is to bang the rocks together 
guys"

Paul,

I am not a lawyer, but I've looked over the the pages in your 'fair
use' reference and it seems to me that if the painter is printing
copies of your photos and using them in a workshop (i.e. for
_commercial_ purposes) that is clearly NOT fair use. If he wants to do
this in a non-commercial setting (e.g. high school or college
educational setting), he might have a case. 

Of course, you say he's asked permission, so presumably he hasn't done
this yet. If not, you'll need to decide whether "If in a workshop he
spreads the name as well as the concept of the images, does that do
more good than harm?" and grant or withhold permission accordingly. 

As for the way to stop it -- if you deny him permission to use them
and he uses them anyway, you'll need to sue for copyright
infringement. There may be technical ways to prevent them from being
printed from the web, but, not being an expert, I'm speculating.

Ken C.

--- In DigitalBlackandWhiteThePrint@yahoogroups.com, "Paul Roark"
<paul.roark@v...> wrote:
snip...
> 
> A painter, who is also an instructor, has asked permission to use my
images,
> "as reference for my oil paintings .(for composition value, etc.)
not
> reproducing in any means other than for original oil paintings."
> 
> I'm not sure there is any way to stop this when images are on the
web.
> Also, under "fair use" the images probably can be used in the way
he is
> suggesting, although I have not researched this.
> 
> Incidentally, here is a site on Copyright and Fair Use that may be
useful:
> http://fairuse.stanford.edu/
> 
> I'm not even sure it's wise to try to stop virtual copying.  If in a
> workshop he spreads the name as well as the concept of the images,
does that
> do more good than harm?
> 
snip...

kchriste writes:

> I am not a lawyer, but I've looked over the the pages in your 'fair
> use' reference and it seems to me that if the painter is printing
> copies of your photos and using them in a workshop (i.e. for
> _commercial_ purposes) that is clearly NOT fair use. If he wants to do
> this in a non-commercial setting (e.g. high school or college
> educational setting), he might have a case.

Both settings are educational.  Educational use isn't limited to
traditional high schools or colleges.  Some educational use qualifies as
fair use, even in courses offered by a commercial, private school.  For
example, using newspaper clips in a language class almost always
qualifies as fair use; using photocopies of textbooks in a class is
almost always infringement if it isn't authorized by the book publisher.

Commercial use is when the image itself is the essence of the thing
sold, or is essential to some selling activity.  For example, using an
image on a postcard is commercial use.  Using an image as the background
for an advertisement is commercial use.  However, using an image to
illustrate an article about a city or thing or place is editorial use,
and using an image as an example in any kind of educational setting is
educational use.  Some types (not all types) of educational and
informational use are "fair uses" under U.S. law (and under similar laws
in some other countries).  Commercial use is never fair use.

Additionally, in the U.S. and some other countries, editorial and
informational (and educational) use does not require model or property
releases.  Commercial use always requires releases everywhere.