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Design Theft: Crossing the Line

July 26, 2004

Altering someone else’s design material creates a new work; is this acceptable? How much does the original have to change for it to become acceptable? A visual look at the process provides more questions than answers.

Long-time readers of this site will perhaps be familiar with some of the design theft issues discussed in the past, and their outcomes and consequences. It’s an issue I’ve had no choice but to keep a close watch on.

But the question of theft of design material is an interesting one, because most have different definitions of when a piece of work can be considered a rip-off. How much does it have to look like the original? How much has to be changed for it to be considered a new work? Is it even ethical to start with someone else’s material and create your own work out of it? Even if the final result looks nothing like the source?

In an attempt to visualize the problem, I’ve put together this series of images. Starting with a relatively mundane photo of Vancouver’s skyline, I’ve applied a layer of effects and modifications in each step to progressively create a completely different final image.

step 1 step 2 step 3 step 4 step 5 step 6 step 7 step 8

Assuming the photo I started with was copyrighted by someone else and I wasn’t licensed to use it, at which step of the design process above does the work become ‘legitimate’? Discuss.


Reader Comments

Ryan Mack says:
July 26, 01h

I would love for 6,7 and 8 to be ‘legitimate’, but I don’t think they are.

I’m not a lawyer and could be wrong, but If you’re not licensed to use the work, or have not otherwise received permission to use it, you could get in a big heap of trouble.

Ed Knittel makes an interesting point but what Andy Warhol did is not the same as what Dave just did. The Campbell design may have inspired him, but he didn’t benifit from it in any other way. Andy had to do all the work to create the art. Dave didn’t. Dave didn’t have to go out and take that photo. He got it, and all the effort that went into creating it, for nothing.

Caleb says:
July 26, 01h

WOW!!! I am amazed at what I am reading here. At no point did the work become “legit” It started with a copyrighted image…. it does not matter what the end restult was, the copyrighted image was used. It does not matter how much it was altred. As a photographer I would be extremely hacked had I found somebody stole one of my images and used it in such a manner. Granted it is impossible to tell the final product started with the photo, but that is beside the point.

Another example would be a painter taking somebodys photo and painting a picture of it then selling it in their gallery. That too is wrong. The photographer had the copyright on the image not the painter. The smae can go for an illustration. If you use a photo of somebody for a cover illustration of some sort and you did not take the photo you are violating the copyright of the person that took the photo.

Keeping in mind all design is inspired by other design ANY flat out use of an image to create another is copyright infringment. I am pretty amazed at reading the responces here. I would think more people would know that.

Now, the fun part woul be proving the individual truly violated your copyright. It could be difficult to do.

July 26, 01h

Ryan wrote:

“…but what Andy Warhol did is not the same as what Dave just did. The Campbell design may have inspired him, but he didn’t benifit from it in any other way. Andy had to do all the work to create the art. Dave didn’t. Dave didn’t have to go out and take that photo. He got it, and all the effort that went into creating it, for nothing.”

Firstly, how can “effort” be judged? Using Photoshop does take effort in monetary, time, and creativity. So I don’t see how you can argue that what Andy did was different than Dave. The means and methods shouldn’t matter. Secondly, Andy surely benefited from the Cambell Soup can work and many many others.

http://www.warhol.org
http://www.warholstore.com/
http://www.artchive.com/artchive/W/warhol/warhol_brillo_box.jpg.html

BTW: if you’re ever in Pittsburgh, PA USA go to the Warhol museum if you get a chance. It’s a very fun and inspiring place.

July 26, 02h

Caleb, perhaps you have heard of the artist Sherrie Levine. http://www.afterwalkerevans.com/
Many artists incorporate copyrighted images into their work. Techniques such as painting photos or newspaper clippings into the canvas (Robert Rauschenberg, etc.) as well as some collage artists would probably be considered copyright infringement by some of the commenters here.

I think people might be overlooking some facts about image copyright. I’m not a lawyer, but from what I have read copyrighted images can be used without the author’s permission if the use falls under “fair use.” What “fair use” is is somewhat hazy, but aspects of it allow the image to be used/copied if the use does not affect the author’s ability to market their image.

In no way did Warhol affect the ability of Campbells to sell soup. Likewise, making the web graphic we have been presented with will surely not affect the ability of the original photographer to sell cityscape photos.

Another aspect of “fair use” is how much of the orginal work is being copied. It this example, the 150px image could have been a crop from a 3500px panorama. Sampling this small section would most likely come under “fair use.”

Finally, in this case we are also dealing with extreme data filtering. The original image data is mathimatically altered by the artist to a final form where the original no longer exists. This certainly is not copyright infringement any more than writing this comment is. (I didn’t come up with all this stuff myself. I researched copyright law, representative artists, etc.. I then used my mind to process the data available into this post)

July 26, 02h

This is a really great illustration of how things can quickly get murky with IP issues! Anyone who thinks there are easy answers here is delusional.

To Caleb: if you think it is clearly a copyright violation to paint a picture of a copyrighted photo, what makes you think it’s OK to take a picture of a “Mountain Dew” can (http://www.e-simpson.net/archives/DepthOfFieled.jpg), when the “Mountain Dew” logo is most definitely copyrighted and trademarked? (http://tess2.uspto.gov/bin/showfield?f=doc&state=tjttfg.2.33)

July 26, 02h

Caleb…
I’m sorry, but you’ve just lost all credibility with me as I have just visited your website. You are using background #57 from Squidfingers.com (http://www.squidfingers.com/patterns/?type=patterns&id=62) yet you have this at the bottom of your page “All Content Copyright Caleb Simpson ©” and I can’t find any mention of Travis’ site or credit for his background image.

July 26, 02h

> If you haven’t paid for the right to use someone else’s intellectual property, you can’t use it, no matter how much you obscure the original.

Copyright has always had a grey area that judges have to rule upon. The four factors involved in deciding whether a use falls under “fair use” (in the USA) are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.

http://www.copyright.gov/title17/92chap1.html#107

It’s quite clear that (3) and (4) are overwhelmingly in favour of counting at least some of the derivative works as fair uses. (2) is neutral. The only thing that counts against some of them is if they were used for commercial purposes. Even then, a judge would have to decide whether or not the other factors outweighed the first one - I’d be inclined to say that if an image was altered to the point of it being unrecognisable, that it would be a fairly safe bet that the judge would rule that it would not be infringing, on account of (3) and (4).

July 26, 02h

Just thought I’d throw out another area where this is an issue: music. Is it acceptable for one composer to “quote” another composer’s work? What about variations on another composer’s theme? There are lots of examples of this out there. Or is it acceptable for hip-hop artists to sample other songs and include them in their own work?

Personally, I think it would be stupid to outlaw this sort of thing. By significantly changing a piece, or using just a part of it in a totally different context, you have created a different work. As others have mentioned, all art and design builds upon what has gone before.

I think there’s a bit of the boy who cried wolf going on in this community. I see so many claims of stealing, but so many times when I go to look at the sites in question, they bear hardly any resemblance to the original design. We need to calm down a bit, I think.

jgraham says:
July 26, 03h

> (4) the effect of the use upon the potential market for or value of the copyrighted work.
> It’s quite clear that (3) and (4) are overwhelmingly in favour of counting at least some of the derivative works as fair uses

Certianly not if the original photographer’s trying to sell the work. If I can take (part of) a photo and alter it to make a new work without paying royalties, that impinges the ability of the original photographer to sell the photo for my use.

Personally, I doubt that any of the pictures are strictly legal since they are all derivative works of the orginal photo (of course, the USA has fair use which might mean one could use a very small proportion of the orignal. Just how much is unclear). I also believe that the situation with copying a work in a new medium may be rather different to that of using an existing work.

The closest analogy I can easilly imagine is sample based music. In that case, the musicians require a great deal of legal help to release songs, even if their final song sounds nothing like the sample they used (for example, several hundred clearances from legal were required for The Avalanches’ first album).

July 26, 03h

I think that technically, the owner could take action if you use his/her photo period, no matter how different you make it, because it is still their picture that was used. I wouldn’t agree with it, but legally, I think they can… so for client work, I’d say it’s best to actually pay for the image at Comstock, Getty Images, Corbis wherever, just so you know you won’t have any problems. If its for non-commercial work, I don’t think it’s that big a deal.

July 26, 03h

Any of the uses (Steps 1-8) are a violation of copyright law and could be pursued in court — at least in the U.S.

Andy Warhol painted everything from scratch, so in the end, it is entirely his work, even though inspired by a source. Now, if Andy used the Campbell’s painting to sell his own soup, he’d have some trademark trouble there… but he didn’t.

The original photo in the example is assumed to be owned by a third party. Unless permission is granted (or the photo is public domain), it can be proved that copyright has been violated.

The only exception would be if the final piece were an intentional parody of the original subject. In this case, it would be protected.

Caleb says:
July 26, 03h

Okay, first of all Simon, the site is a new launch (and not even 100% complete yet) I forgot to credit Squidfiners for the background, it is now in my css file right under the background property.

To Josh: The use of the Mtn. Dew Cans in my photograph falls under fair use. The photo is for educational purposes, a tutorial will follow this image along with others. It would be different if I was selling the photograph in a gallery, but I am not. Additonanlly since it is a published form of media online it also falls under editorial use. Just like your local paper can photograph a local McDonalds opening and run it on the front page, I can do the same with a can of coke.

This ended up being quit a hot topic though. Should be interesting to see what else crops up.

13
Marc says:
July 26, 03h

As a twist, how about removing ourselves a little further from the photo itself.

What about the works in the photo themselves. Say a famous person, Famous building. Sure we may own the photo, but do we own the right to manipulate recognizeable landmarks or people?

let’s say i took a photo of my monitor which i own. It has the wonderfull Mezzoblue up at the time. I took the photo, do i have rights to manipulate mezzoblue simply because i took the photo and own the monitor?

Probably not. In a convulated way, im asking do we need to consider more than photo ownership and also consider photo content?
2 cents.

July 26, 03h

I think it’s your responsibility to give credit to the original author, unless its explicitly stated by or agreed with the original author, that that isn’t necessary. It doesn’t take much to add a sigle line saying “Original Photograph by Mr X” with a link to their home page or something.

The only problem comes when:

* You’re explicitly claiming that it’s all your own work.
* You’re making a profit from it without permission.
* The original author has explicitly stated that you may not reproduce or create derivative works without permission.

If someone used any original image, code or whatever else I publish on my site, I’d take it as a tribute to the quality of the work I created. That’s why I explicitly release everything I have created, and will create in the future on my site under a Creative Commons Share Alike licence.

As for the example pictures, I think it’s perfectly acceptible to claim number 2 as your work, if you give credit to the original photographer.

July 26, 04h

Caleb — you are correct. I forgot to mention editorial content. That certainly falls under “fair use.”

16
Zarquon says:
July 26, 04h

Jennifer says: “We need to calm down a bit, I think.” Yes indeed. So far, we have a couple of corner cases of badly ripped-off websites that would have never bought professional services in the first place. Is this really a problem?

The issue at hand is not one of “What does copyright law allow or disallow?” If we wanted to know that, we’d just get a legal opinion, and that would be that. No, the question is, “What is reasonable ‘fair use’ of other people’s work?”

My view is admittedly outrageous. I see design as a meme; the more useful the meme is to people, the more likely it is to be copied. Under this scenario, there is no single author, only people who repurpose or repackage (i.e. “steal”) existing memes, add slight mutations and pass them on to repeat the cycle. As outrageous as this sounds, the memetic model is probably the most accurate one we have. In the memetic view, “theft” is a vital part of the process.

Bringing economic considerations into the fray complicates things, but I firmly believe in what I guess could be called a Taoist solution, which is that it is foolish to try oppose and hinder natural memetic evolution. Economics and memetics must become harmonious in order to co-exist, and because the economic system is built on the memetic system, the former must co-operate with the latter. If the economic model doesn’t conform, it will fail in an exactly similar way that a farmer that doesn’t co-operate with the natural cycles of nature fails.

Dave P says:
July 26, 04h

Wow, what a thread!

First off, before I say what I say let me point out that I’m not a designer by trade, but a programmer.

Now, I know I’m going to be flamed for this, but Copyright, for all intents and purposes is dead. You may not like it, it may make you mad, but it’s true.

If the music industry is any indication to us, it is simply impossible to impose outdated legal institutions in today’s world. You can argue about this with me until we’re both blue in the face, but you can’t stop the inevitable. Copyright is directly related to what the popular notion of “fair play” is, and that, my friends is evolving.

In my opinion, Image 4 is enough of a change to render it “fair play”. Enough orignal work and inspriation went into the work as Dave put in the original photo… at least as I imagine. Strict reading of copyright law is a non-starter: Clearly, Dave didn’t make the buildings in the photo, does he have the right to take credit for their arragement? Or course he does.

Does someone else have the right to take inspiration from said photo to derive another work? Of course they do.

Where the line is drawn here varies depending on the end viewer (as we can see), and hence is impossible to enforce. In this day and age, we must learn to deal with being “copied” and leave it at that. We’re better off encouraging the notion of what we consider “fair play” through things like the creative commons than trying to enforce an outdated structure.

18
adam says:
July 26, 04h

I’m with Zarquon on this (the hippie anarchist artist i am): once you make an idea manifest, it is no longer yours, but ours.

To deny this is to deny the human condition and eons of evidence. If it’s attractive to someone, it will be stolen - and in the best instances, improved upon.

The moral outrage about piracy is motivated by either money or ego, not common sense. Wasting time, every human being’s most precious resource, on a course of litigation or public humiliation is preventing you from concentrating on your next great creation.

The original creator has the satisfaction of knowing the truth, the joy in creating the original artwork, and the ability to create more of the same calibre - the pirate has nothing but an empty claim to fame.

(disclaimer: i am an illustrator, and i know my artwork has been used without my permission for good or for ill … so be it, I know where it came from.)

Pid says:
July 26, 05h

(Way to late in the thread for this to get noticed properly I suspect.)

Copyright is not dead, and it *is* possible to enforce.

It’s interesting that you raise the music industry as an example, as it was the first thing that sprang to mind when I read this thread, as that industry pretty much has this topic covered, in all territories.

If an artist uses a piece of another’s work, in part of their own work, then as a rule the artist (or their representative) must clear that ‘sample’ for use in the derivative work.

It does however, depend on the original artist being able to detect & prove their material is included in the derivative.

So the answer is not a number, it’s: ‘When the original artist is not able to detect that their work has been reused.”, or ‘When the original artist approves the use of their material’, or ‘When copyright expires on the original work’.


~

I would suggest that this is a moot topic anyway, as soon as the process moves into the legal arena - then it’s just Lawyer Trumps.

July 26, 05h

When I’m not geeking, I’m a herald in a medieval society (http://www.sca.org.au/). We have a set of rules we apply to decide if the heraldic device (“coat of arms”) that you want to register is sufficiently different from every other registration on our files. I think you can apply these rules to this question profitably.

First, start by thinking of the most significant part of an image, and call it the “primary charge”. If there are other bits, call them “secondary charges”. The background is “the field”. In the case of these images, the primary charge is the building on the skyline, the secondary charges are the clouds and the field is the basic blue of the river and sky. Now we apply our heraldic rules:

By the first rule, X.1, two devices are sufficiently different if one has a primary charge and the other does not. So if you take out the buildings, you’re clear.

By the second rule, X.2, two devices are sufficiently different if you change the primary charge completely. So if you delete the buildings and put in a serif letter T, for example, you’re clear.

By the third rule, X.4, two devices are sufficiently different if they have two Clear Differences. This is complex, but some examples of single Clear Differences would be: changing the field, adding secondary charges, changing secondary charges, changing colours, and so on.

By SCA heraldic rules, numbers 6, 7 and 8 are different by X.2, and numbers 3, 4 and 5 have at least two Clear Differences by X.4. So to a herald, only #2 is in conflict.

Although the heraldic rules are counterintuitive, they’re a modern formalisation of a few hundred years of practice, so they have some value. Or so I believe… but heralds aren’t known for their sanity.

Shelley says:
July 26, 05h

Had trouble posting comment earlier. Trying again:

Ed, I did make a statement. I said that the entire quote was bullpuckey. But the following statement especially earns that condemnation: “If someone steals your work and claims it for themself, its not theft, its a compliment, a measure of success”

This amounts to nothing more than someone without imagination, creativity, or even the willingness to expend any effort, benefiting from the work and talent of others. And then lying about who created it. I feel this type of behavior deserves the strongest condemnation.

As for the Andy Warhol issue, this was an issue of trademark rights, not copyright — see ( http://www.cni.org/Hforums/cni-copyright/1998-03/0557.html )

I am a professional photographer, and would be unhappy if people took my work, manipulated it in photoshop, and then used the image as they would. Without asking my permission first. Anarchy had to do with freeing oneself from an oppressive government, not taking other people’s work and pretending you did it.

As for the objects in photographs, that’s been covered in other rulings, but also see http://www.photosource.com/legal/lg_nov00.html

July 26, 05h

I can’t understand how a copycat can live with himself.
I for my part could never publish anything that I know for my self that I’ve ripped from someone.

23
Zarquon says:
July 26, 07h

Shelley:

I’ll grant you that someone who has no imagination, creativity or willingness to expend any effort in life is not someone of admirable character, but at the same time, I can’t say that that person poses much of a threat to someone who *is* creative and hard-working. In fact, I’d say that its nearly impossible to fake those qualities. I’ve known people like that and I can’t say that I envy their career prospects. Maybe you think differently, maybe you believe cheaters prosper, I don’t know.

A creative person like yourself benefits daily from the work and talent of others, most often without crediting the original source. How often have you borrowed a composition or perhaps tried to replicate a particular mood or feeling that originated with one of your influences? After all, isn’t it true that someone spend a great deal of time and effort experimenting, trying and failing to finally come up with a technique that you simply lift wholesale? What about the craftsmanship in all your tools that oftentimes pay for themselves many times over? You don’t stop to credit these people, and when you do pay them, its insignificant to a lifetime of your own personal profit from their efforts.

My opinion is that we stand on the shoulders of giants. The debt that we owe them is greater than what we could hope to repay. We should follow in their footsteps, and freely contribute our creative efforts back to society. I am completely confident that society will reward us for that.

Ryan Mack says:
July 26, 08h

Ed Knittel wrote:

“Firstly, how can “effort” be judged? Using Photoshop does take effort in monetary, time, and creativity. So I don’t see how you can argue that what Andy did was different than Dave. The means and methods shouldn’t matter.”

Effort can be judged by the amount of time and money required to produce the work. I’m not saying that using Photoshop doesn’t require effort, just that it required less effort for Dave to produce his work than it would have had he taken the photo himself. There is a direct and measurable benefit of having used an existing image. For Andy to have done the same thing, he would have had to use a copyrighted lithograph copy of the Campbell can in place of a blank canvas.

“Secondly, Andy surely benefited from the Cambell [sic] Soup can work and many many others.”

I’m sure he did, but not creatively (an opinion of course, since I’m not actually him). He found something in his everyday experience that inspired him and painted it (I suppose). It could just as easily have been an old building. Would he have owed the architect credit for its design? Would a photographer?

(It had to be an old building: http://www.copyright.gov/circs/circ41.html Perhaps this just applies to the plans and drawing for construction and not simply images of the building? Anyone know for sure?)

25
Bardas says:
July 26, 08h

I think the derivative work issue is interesting, and when combined with the content issue brought up earlier you can run into some problems.

For example, I found #6 was the point at which I didn’t feel like it the image was a rip off, but the distintive shape of that one building is there throughout the series. This could make every photo a derivative work. However, the only evidence to support this is the building’s distintive shape, which the photographer did not create. In short, some interpretations could lead to the conclusion that the original photographer has created a derivative of the architect’s work. Should the architect get royalties for the first photographer’s use of their design in his or her work?

I think this is why the law in the US emphasizes fair use, originality, and requires damages to arise from infringement before a case can be pursued.

More specifically, in web design, the issue of column layout comes up again and again. Can you really say that your copyright on your two column layout enables you to declare that all other two column layouts are derivative works of your one masterpiece, fated to forever be the only legitimate two column layout in existance? Of course not. The same goes for buttons. Yes, you can copyright a button graphic, but the slightest change (even text color), and it isn’t the same graphic anymore. At this point, you can’t really go to a judee and jury and say, “Well his buttons have rounded corners, a white background, and black text. My buttons have rounded corners a black background and white text. Clearly his work is a derivative.” You would be laughed out of the courtroom, because a button with rounded corners, Arial text, and a dropshadow does not meet the originality requirment necessary to obtain copyright. Give your buttons a unique patterned background, and you might have a case, but please don’t tell me that, “I made this really nice button set, so now all buttons that share its broadest attributes are deriviatives of my work.” Unfortunately, the monsterous vanity and conceit of certain designers will lead them to do this all the time. (Because they are always origninal, of course. Every idea springs forth from their amazing little brains just like Athena came from Zeus. No cross pollination, whatsoever. ;) )

Claiming copyright of a CSS file is a great example of claiming copyright for something that is not original enough to merit protection. You didn’t create the language. You didn’t create the interpretation rules. Applying it to different webpages will result in wildly different outcomes. In short, you have created a recipe derived from other people’s work, not an original work of art. Like most food companies (and perfume companies), you will find out that you cannot copyright a recipe. At best, you can call it a trade secret. Too bad CSS can’t be compiled, right?

This is not to say your CSS file cannot be part of a copyrighted work. Indeed the unique visual output from a combination of HTML, CSS, and original graphics files does create a unique and original work of art that merits copyright protection. It’s just that you CSS or HTML cannot stand independently and merit copyright.

To claim such a thing is like a painter claiming a copyright on the texture of canvas, circles, or the color blue. It’s silly.

26
Alan Levine says:
July 26, 09h

How about this? Say the starting sjyline image is as well known photographic work, a la Ansel Adams shot of Half Dome. If I take my digital camera down to the same waterfront view (or Yosemite), and take my own photo of the same well-known image, am I free to do whatever I want?

I am not proposing this, just curious how gray the waters can be.

As far as practice- it never hurts to ask. I ahve found just as many people or more on the net happy and ego-tickled to share as those that say “no way”.

July 26, 09h

I’m not sure how one could ever enforce copyright law on an image, or code, or even a photograph. Something as simple as a photograph of the city on a clear day could get called into question… Take the Kodak photo spots at Disney World. People are taking almost identicle pictures all the time, and if the sky is clear and they avoid the crowds, they will look almost 100% the same… Who owns a copyright on something anyone can see?

But somehow simularity can still be judged. Take Mariah Carey, for example. According to: http://newscenter.mind.net/wed/ak/Uus-carey.Rsuc_ElE.html she is due back in court over a song that sounded similiiar. I heard the two tracks next to each other, and there is definently a resemblence, but I got a hunch that no jury will convict unless you can prove that she took it….

Patterns, Styles, even javascript functions… just can’t be held up. Photos, Images, Code… Probably even harder. At what point though, should a designer care? I would guess the point at which it cost’s them money. But even then… There are always more people looking for design jobs. Unless someone is doing it to you on a regular basis, it’s probably not worth the time or effort to try stop anyone from using a technique or work of art. It would be better, and I think the world is starting to come around to this belief, that if we share, we will move forward together faster. It’s the people who take advantage of it, that ruin that system.

28
Graylien says:
July 26, 10h

It’s not theft. It’s sampling!
(As Puff Daddy might put it)

29
Aaron G says:
July 26, 11h

I would say somewhere between 5 and 7. It’s up for debate, but this is where it begins to bear no resemblance to the original work and could not be confused with the original work. It become “derivative”.

Web says:
July 26, 11h

I agree with Aaron, the work needs to be so diffrent that you could not picture the original.

5+ seems to be a good marker for that because of the vast color/shape difference.

July 26, 11h

It’s really not about how you can recognize the picture you used in the end transformation, it’s the honesty involved. Do you want to be shady? Fine, PhotoShop a picture till you can’t recognize it. But, the world has to hope that Honesty and Integrity will prevail. Sometimes it does, but sometimes it doesn’t.

Also, you forgot: http://www.mezzoblue.com/archives/2003/12/17/the_case_of_/

July 26, 11h

Number 5 is where the original has been modified to the point it is not recognizable if put side by side. However, I can take pretty much the same picture standing in the same location and the picture is mine. Although if you can prove that I used your picture to come up with mine, then it is a little more of a minefield.

When we discuss design of a website, it becomes a little hazier as technology becomes involved. Patenting an idea is a minefield in itself. If I used the same colors on my site, am I copying you? What if I had a right navigation bar too?

I think we need to look at how the architectural field deals with copying as I think that mostly resembels web development and design.

July 26, 11h

I thought it was like the 5 second rule with food on the floor, only it was the 30% rule with images. If you change an image or other copyrightable item at least 30% it is yours, however in terms of image editing what are we calling percent? I have no answer and i believe it would have be considered on a step by step basis.

In terms of the image you created i would have said 4 and above could be considered yours. I don’t have any sort of science behind that, just a gut feeling.

inkheart says:
July 26, 11h

as a photographer i have to say that the idea that i own any image i take is ridiculous. photography is not the act of creating, it’s the act of finding. whatever’s in the photo was already created by someone else. this only changes if i do a lot of postwork on a photo, or if we’re discussing one specific matted and framed print to be physically exchanged for material compensation.

as long as credit is given, i’m not being deprived of income, and my work isn’t used for ideological goals which i may find reprehensible, i don’t see the problem.

without derivative works we wouldn’t have photography (should i pay an architect royalties for taking a snap of their building), hip hop, or any number of arts, and we most definitely would not have design.

Paul D says:
July 26, 11h

I think there are actually two separate questions here, the technical question of determining similarity, and the ethical question regarding copying/plagiarism. I think using the word “theft” is an inaccurate hyperbole, so I’m going to avoid it.

1. The technical question: any substantive change, I believe, results in a derivative work. For it to be a unique work, however, I think the original needs either (a) to be unrecognizable, or (b) recognizable, but with a clearly different intent. Works of parody would fall under (b).

2. The ethical question: if a derivative work is not unique, credit should be given to the original creator; otherwise, you’re claiming it as your own work, and that is plagiarism (dishonesty). If the work is unique, I don’t think plagiarism is an issue. As far as using materials created by someone else goes, I don’t have a problem wtih it. All creativity, science, and culture come out of building on what other people have done. I strongly object to the notion that ideas and art can exclusively belong to one person. If I can build on something you’ve created and make something even better, we both benefit. If I try and fail, then what you have lost?

Patrick says:
July 26, 11h

I agree that between 5 and 6 the image becomes unrecognizable as a derivative work of the original. However, this does not make it “legitimate” to use.

Original, artistic works belong to their creator. In the case of a photo, there’s plenty of precedent to show that the copyright holder has the exclusive right to authorize derivative works. Other debate over how much you can own a “design” have gotten us into murkier waters, but this seems to me to be a clear-cut case. If you haven’t paid for the right to use someone else’s intellectual property, you can’t use it, no matter how much you obscure the original. In fact, it seems to me that going to great lengths to hide the source of the photo makes the violation even more egregious, since you’re in effect covering your tracks. Specifically, in this hypothetical case there is nothing you could do that would make the image “yours,” with the exception of narrowly-defined fair uses like comment, review, and parody. As Sheldon pointed out, reverse engineering (i.e., going to the same place and snapping the exact same picture) is also protected.

There’s nothing wrong with having a sense of share-and-share-alike, and I think that movements like Creative Commons have done great things for the public domain, but we must respect the right of each artist to decide what becomes of his or her creative work.

July 26, 11h

In my opinion, 1 - 3 are definitely out of the question. 4 is a dark gray area. 5 is light gray. 6 - 8 shouldn’t be a problem. The image is pretty small, so the alterations make it unrecognizable quickly. If the image were larger, 4 might be out of the question too, but I’d have to see it to form a firm opinion.

A related question is whether it would be acceptable to take a small part of the original and integrate it into another image, how significant a portion of the original that would acceptable for, and how significant a portion of the other image it ended up comprising. “Significant” wouldn’t be limited to size—a patch of blue from the sky, for example, should be copyable without a second thought, but other parts of the original would not be.

Another non-size-based example of significance would be the question of copying the JavaScript and/or CSS that powers someone’s menu system. Where is the line between emulating techniques and copying code?

phnk says:
July 26, 12h

The most obvious and legal way not to risk anything : ask the author, for he possesses all moral rights on the picture.

Everyone is saying 5/6 is okay. But look, imagine I am the author of this picture and I think your 5/6/7 pictures are ugly, inhuman, indecent. You are infringing my moral rights.

Let’s make it simple : there is no scientific way to tell if such change is alright. But there is a humane, courteous way to get around all infringement stuff : ask authors.

Derek says:
July 26, 12h

In practical terms, the point of key difference probably comes when the original artist can no longer detect where the image came from—probably around step 6 or 7. But as Patrick said, in theory even that isn’t enough, just as Jell-O remains a meat product no matter how unrecognizably so. If you’re a principled vegetarian, the source still matters.

Is there a point where the changes are so transformational that they essentially become fair use? What if you used an original image or design as the “seed” for a mathematical randomizer in a filter on another image entirely? I don’t think anyone could argue that to be theft. But you’d have to ask a copyright lawyer…

Paul D says:
July 26, 12h

Antone: in my opinion, claiming to own a piece of simple Javascript or CSS code for doing something trivial is like claiming you own a special technique for digging holes or changing TV channels, and no one can do it without your permission. People like that need a reality check.

phnk: What Moral Code do these grand Moral Rights come from? My Bible doesn’t say anything about copying. I know we have copyright law, but legal != moral. I think Creative Freedom is a loftier ideal, myself. You’re free to disagree, of course.

July 26, 12h

Paul D is absolutely right about this. This is an ethical question only because without knowing the intent of the “stolen”/manipulated image nothing about it would hold up in any court.

I cannot take your image and sell it as is. However, if I change it in anyway the new image is no longer your image. If there is any doubt about this consider Andy Warhol and his Campbell Soup Cans. This is what art is and like it or not, the medium and method for creating the art makes no difference. The digital world only makes it faster and easier to create similar work to Andy’s in the 60’s (I know it’s not silk screen and oil paint but printer ink is still ink). Andy never credited the original 1898 designer when he used the original can’s design in his pop-art. But this is a perfect example of what Paul said: Andy built on something the Campbell Co. did but in the end the Campbell Co. really benefited from the publicity that his art work did for their brand and design.

Web design, like an oil painting, is an art and unless we’re talking about trademark and copyright law and infringement then I think that this subject is rather mute - technically speaking; ethics aside.

http://answers.google.com/answers/threadview?id=336749
http://www.cni.org/Hforums/cni-copyright/1998-03/0557.html

42
Zarquon says:
July 26, 12h

Step 2.

Altering someone else’s design material creates a new work; is this acceptable? Yes, always.

How much does the original have to change for it to become acceptable? Any perceptible change constitutes new work, on the simple principle that if it appears different, it is different. In my mind, step 2 constitutes a new work from step 1.

If someone steals your work and claims it for themself, its not theft, its a compliment, a measure of success. People are arrogant and like to claim eminent domain over things that they think they created by themselves. The real truth is that you “stole” nearly all your ideas. There’s nothing new under the sun, everything that is created is a recombination of existing ideas. Nothing wrong with that, its the way that it works.

The reason this issue exists is a financial one. Everyone is terrified of the possibility that they may lose money on the deal. But that’s really an artifact of the economic system we live in, which undervalues the long-term value of skill and overvalues the short-term value of a single output of skill in to a product. The good news is that eventually, things will work themselves out. They always do. In the long run, companies and individuals that don’t correctly evaluate the worth of skill vs. output either lose money and go bankrupt or they change their evaluations. If you realize this, its a non-issue. Working for a company that makes lousy business decisions is worse than being unemployed.

In short, stop being so damn stingy. Let people enjoy your work, be inspired by your work and lie to people that really, they made it themselves. You’ll be much happier and much richer in the long run.

Shelley says:
July 26, 12h

Copyright law states:

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.

Now, if you took your own photograph of this scene by using the original photograph as a model, and then altered your version of the photograph, then you shouldn’t be infringing on the copyright if you could place your altered version of your own photograph next to the original that ‘inspired’ you and the average person on the street could not see any similarity between them.

Jim Amos says:
July 26, 12h

Interesting debate. I agree with the idea that once an image becomes markedly distinguishable from the original it is a derivative work.

I also agree that whenever possible you should take the time to seek permission from the original author. This is not always possible however. Not every photographer is available for contact. Also, what happens if you want to use a photo from an online source and the ‘Terms of use’ page doesn’t even exist? Case in point: http://underground.toledo.com/cgi-bin/imagefolio/imageFolio.cgi?direct=Toledo_Library&img=16

Shelley says:
July 26, 12h

Zarquon wrote:

“If someone steals your work and claims it for themself, its not theft, its a compliment, a measure of success. People are arrogant and like to claim eminent domain over things that they think they created by themselves. The real truth is that you “stole” nearly all your ideas. There’s nothing new under the sun, everything that is created is a recombination of existing ideas. Nothing wrong with that, its the way that it works.”

Ever heard of the term, “bullpucky?” It’s a web-safe clean version of b—-s—-t.

July 26, 12h

Shelley wrote:

“bullpucky”

You can’t just claim “bullpucky” and leave it at that. What about Zarquon’s statement is BS? You may not like it but that doesn’t make it BS. Please cite your reasons and indulge us.

July 26, 12h

In my opinion, at step six there is nothing about the piece that vaguely resembles the first picture.

But, your point is, of course, that it’s entirely arbitrary. It’s whatever _somebody_ decides. The judge or jury in cases that go to court.

July 26, 12h

Paul D: Moral Rights (in Canada) are normally retained even if a copyright is given or sold to another person. The Moral Right means that the person who you’ve sold the copyright to cannot make changes that the author might not like (sorry, nothing to do with the Bible). Or as the copyright act says:

“28.2 (1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author, (a) distorted, mutilated or otherwise modified; or …”

To All: The Copyright Act (again, in Canada) does indicate that “incidental and not deliberately” including one work in another is NOT infringement. Since this example was deliberate, my guess is that it’s infringement. (IANAL)

Dave S. says:
July 26, 12h

Since I recognize not everyone involved in this debate comes from a visual arts background, here are a few more coals for the fire.

Graphic designers have a love/hate relationship with ‘found imagery’. (Actually, it’s more like love, until their work is ‘found’ by someone else, but I digress)

Found, in this case, can mean a number of things. It can mean a collection of photographs of signage, scanned brochures from decades past, photos someone has discarded, or any number of other possible interpretations.

Some will collect these found items for pure inspiration; others will incorporate the items into their own work. The only guarantee about the copyright of these found items is that in most cases, it’s unknown.

Examples of found type:
http://www.itchyrobot.com/foundtype/
http://www3.telus.net/freshbrewed/found_15.html
http://www.rion.nu/v5/archive/000473.php

I like the Warhol precedent, thanks for injecting that into the discussion Ed. Does anyone else have any real-world examples of conflicts, and more importantly, resolution? Opinions are nice, but none of us will really care what the rest think when its our own work getting ripped off.

50
maxanon says:
July 27, 01h

I guess it boils down to what you think a significant change is (and if it matters). Is an improvement okay (a better mouse trap is still a mouse trap)? Controlling ideas and artistry is very difficult. How do you contain inspiration? I remember spending hours trying to find the perfect colour palette and finding someone ripped it. Could I complain? Not really, if I didn’t want it to be copied I wouldn’t have published it.

The funny thing is that many of the really successful artists/creators have their works copied all the time. People copy techniques and approaches to emulate your success. Are they odes? Or rips? Witness those iPOD ads that Apple thinks belongs to them. Woe is them, if they try to sue.

In this day of near-effortless duplication one cannot expect complete control over media. If you do, you need an army of lawyers. Even patents need to explicitly indicate all possible permutations. If you missed something, then someone else will create it. I find copyright protection very broad (and rightly so), but is inherently difficult to really define.

I say, create your own style and the fraudulent ones will get caught out. Oh yeah, I say after #2 (if the photog doesn’t do that sort of thing). And if they do, then all are wrong.

July 27, 02h

> I’m surprised to think I’m saying this, but as an artist and a web designer my income is tied directly to the works I produce, byet I see so much more good in freely giving.

Yes, but that doesn’t mean that you *have* to condone giving what you feel is right.

I think the discussion here is geared around people basing work around those that, no matter what, will object.

July 27, 02h

The original photo is derivative. If we assume that the earth and the sunshine and the laws of physics are in the public domain, as gifts of nature then we can proceed to the landscaping and the architectural designs of the skyline (if not the industrial contribution to the atmosphere). You might also consider the contributions of the lens, film and paper manufacturers that lent their quality to the print that was used. The photographer, as has been stated many times, selected that view (I don’t know if that view is visible from a public right of way, though, so it might be owned by someone else). I assume the photo was found online, so it was probably scanned. So someone selected how to import , probably enhance, and then publish it so that you could find it. Only then did you start your Photoshopping.

So if we back up several steps, we can ask: At which step did it BECOME a creative work. At which step, then, did it become a DERIVATIVE work. And, if willing to make the leap, at which step is it no longer a derivative work.

July 27, 02h

The original photo is derivative. If we assume that the earth and the sunshine and the laws of physics are in the public domain, as gifts of nature then we can proceed to the landscaping and the architectural designs of the skyline (if not the industrial contribution to the atmosphere). You might also consider the contributions of the lens, film and paper manufacturers that lent their quality to the print that was used. The photographer, as has been stated many times, selected that view (I don’t know if that view is visible from a public right of way, though, so it might be owned by someone else). I assume the photo was found online, so it was probably scanned. So someone selected how to import , probably enhance, and then publish it so that you could find it. Only then did you start your Photoshopping.

So if we back up several steps, we can ask: At which step did it BECOME a creative work. At which step, then, did it become a DERIVATIVE work. And, if willing to make the leap, at which step is it no longer a derivative work.

Phil B says:
July 27, 03h

Interesting, Design is a process, if the process starts with the copyrighted image, the final piece, no matter how different it may look, still required that first image to look like it does. Therefore it is totally dependant on that first image, isn’t it?

Vlad says:
July 27, 03h

As Fletcher from porridge put it, “The only thing any of us cons are guilty of is getting caught”

56
helpful says:
July 27, 03h

Free society.

http://www.itconversations.com/shows/detail111.html

57
helpful says:
July 27, 03h

Free society.

http://www.itconversations.com/shows/detail111.html

Sergio says:
July 27, 03h

I don’t know if the part of copyright law that pertains to music is the same as the one for printed works, but as far as I know, in US copyright law *anyone* can make a cover of a song, record that cover and sell it as long as they pay (I think this is a fixed amount) royalties to the author. This is why many songs in movie soundtracks are covers of original songs by other artists (too much trouble getting legal issues smoothed, so they just hire a band to record a cover with full legal regalia specified).

In this respect, the process could be likened to Andy Warhol’s painting of the Campbells soup (total reinterpretation of the original). In the case of a digital work, it’s not as easy. Imagine you start with an original digital sampling of a song. Then you run it through a MIDI syntethizer. Then you skew it a bit, reverse it, change the pitch, add instruments and whatnot. Is this considered a “reinterpretation”? (like making a cover would), or is this a violation of copyright, because you started off the original work?

The “effort” argument doesn’t hold water here. It’s not about effort at all. The original photographer could have taken that picture from his window with a digicam and uploaded to the internet in less than 5 minutes, whereas Dave’s rework of it in Photoshop could take up to 5 hours. That is irrelevant to the legality of it.

There is also the fact that a complete rework is not necessarily protected either. I may be able to get away with selling paintings of McDonalds’ golden arches (like Warhol), but if I completely replicate them from scratch in digital artwork using Illustrator (two yellow ellipse halves are fairly easy to replicate) and sold prints of that on the Internet, I’d most likely be prosecuted by Ronald McDonald & Co. (key difference being that the size of your target market makes it cost-worthy to do so in this case).

I’m of the view that there is a point at which this falls under “fair use”, but that it is wholly dependant on the decision of a jury. US law is plagued with “common sense” statements in these respects (I think the part that defines “parody” is particularly flagrant in this respect).

So… The final work is definitely yours, unless a jury decides the other way. Common sense has a lot to do with it.

Also, I am not a lawyer, but I do read Slashdot a lot =)

Shelley says:
July 27, 03h

Zarquan, inspiration is not the same thing as derivation.

I may be inspired by by a photographer, and study their work and learn from them. But that’s not the same thing as copying their work into photoshop, manipulating the image, and then declaring the work to be mine.

And no matter how much I may work with another photographers techniques, no matter how much I try to adhere to the mechanics of their photography, my photos will never be the same. I can study Walker Evans, and read about his approaches, and understand what I like about his photos — but I can’t emulate them. It’s not the difference in time; there is something in each of us that makes our work unique. That something can’t be duplicated.

Well, unless it literally is ‘duplicated’.

We learn from those that come before, true. We are inspired by others. But if we don’t use this knowledge and inspiration to create something new and original and uniquely us, we’re not adding back. All we’re doing is taking.

As for society providing — too many great artists waiting tables. Sorry, don’t buy it.

Bardas, your analogy overlaps between work and technique, and loses because of this.

You say that a CSS file can’t be copyrighted. Well, then, neither can a book. After all, a book is nothing more than words on paper, or on the screen.

Come to that, a photograph is nothing more than dots in a certain order, or the certain reactions of chemical on specialized paper.

CSS is a tool, true. Lighting in photography is also a too. So is a paint brush.

But when the tools are used to create something that is unique, that something is copyrighted. You then say,

“This is not to say your CSS file cannot be part of a copyrighted work. Indeed the unique visual output from a combination of HTML, CSS, and original graphics files does create a unique and original work of art that merits copyright protection. It’s just that you CSS or HTML cannot stand independently and merit copyright.”

I have to disagree with this. The whole purpose of CSS was to strip presentation from content. It’s true that CSS files by themselves don’t ‘do’ anything without having associated HTML. But it is the CSS that makes the HTML unique. That’s what CSS Zen Garden proves to some extent — the same HTML looks completely different with each design, and the design originates in the CSS.

I have a styleswitcher in my weblog that does the same thing — same HTML, different CSS files (some generated by PHP). They’re very different.

Even with the use of images, it is the CSS that holds it together.

What you’re saying is that I can copy Shea’s CSS file, and as long as I arrange the HTML entities differently, the work isn’t violating his copyrights? But that’s really no different than taking one of my photographs and photoshopping it, isn’t it? Which is the point that Dave Shea was making, all along.

60
Davey Boy says:
July 27, 04h

I think the picture becomes completely free of all original copyrights at stage 2.

61
Bardas says:
July 27, 04h

You are incorrect, Shelley.

If books were only allowed to explore a single, narrow subject and use up to the same 175 words in a rigid syntax, then books would not be copyrightable.

In human language, “I love you,” “My heart melts in your glorious presence,” and “Let’s be together forever,” can all mean the same or very different things. Similarly, “I love you,” can have millions of different meanings.

Now, let us compare the infinite flexibility and variety of the human mind with CSS.

p {font-size: 12 pt;}

It only means one thing. There are only a limited number of ways of saying it, and they are all predefined by a standardized syntax with no possibility of nonstandard input from you. It is not original in and of itself.

The physical photograph is nothing more than data, which can not be copyrighted. The mental abstraction that data creates within the human mind can be copyrighted if it has originality. A simple photograph of a cityscape is in trouble, though, if it tries to claim that other photographs of the same cityscape are derivative works. As another person commented, you found the cityscape photo, you didn’t create it. Did you design the buildings? Did you tell the builders what lots to use? Were you supervising when God laid out the foundations of the earth? Indeed, the final image in the series has the strongest copyright protections, as it is the most original.

You write, “But when the tools are used to create something that is unique, that something is copyrighted.” Exactly, CSS is a tool. You can copyright the work it produces, which is the document the viewer sees. You cannot copyright a hammer. You cannot copyright a brush. You cannot copyright a framing arrangement for pictures in a gallery.

You then go on to argue that design is contained wholly in the CSS. Not true. As you noted, the CSS does nothing without the HTML. If one took Mr. Shea’s CSS file and applied it to Google, Microsoft, and Homestarrunner websites, you would get very different designs, as none of those sites have the same div structure, nesting, IDs, and classes for the CSS file to select. Could you claim copyright on that outcome because your CSS file was used? No, as you did not conceive the final result. The browser simply followed a set of instructions that are so unoriginal that they can be created by a randomizer. The resulting chaos was not intended or foreseen by you. You did not [i]design[/i] the result. The HTML, CSS, and document images all combine to form a final document. You hold the copyright on the images and on the living document, as they are the only original abstractions within the human mind. However, you do not hold the copyright on such unoriginal and non-creative things as HTML and CSS by themselves. It is the combination of all three that makes the final result unique enough to copyright.

Finally, you write that CSS use is equivalent to image use, and that derivation is the same in both. Artwork as a mental abstraction is not the same as standardized code. I pray our society does not confuse the two, lest all artists create works that may only contain two congruent circles and an optional square.

Caleb says:
July 27, 04h

Davey Boy….. Let’s say I found a website you deisigned and really liked the layout and decided I wanted to use it. ALl I did was change the logo and colors of the tempate. Is that completely free of all original copyright?
This appears to be an ongoing debate amoungst a few weblogs lately. When it all comes down to it though there are truly no original ideas and all design is inspired, but there is a point when trademarks and copyrights are violated.

AkaXakA says:
July 27, 05h

Code shouldn’t even come into this argument.

Html and css just can not be copyrighted. As front-end weblanguages they are inherrently open, back-end languages are a different matter. Nor does that matter, as if someone ripped you off, and remade the whole site in tables and inline styling, it’d still be a rip-off.

It’s the visual part that counts, nothing else.

I’d say that from level 4 you could/should get away with it and from level 6 you’re in the clear legaly too.

July 27, 06h

Well the issue whether something is illegal or not is irrelevant. This new creation may very well be illegal, actual copyright may have been violated to some degree. But like I said this is irrelevant, what matters is what one can be prove in a court of law. You may think that I’m shallow and obtuse. But this is the reality. The new image shares practically no representation of the original image on which it was founded. The new image is not based on or derives inspiration from the new image. It was merely a starting point to create a new image. So in one sense we cannot even speak of a reproduction of the original. That would even make the ethical argument mute. If you do credit the original work be very careful how you do this, if you acknowledge the use of the copyrighted image then you are up the creek without a paddle in any case.

July 27, 06h

I’d say step 6. At that point the original image (in my eyes) cannot be seen in the new image. It still might be a copyright infringment, but no one would be able to prove it. The only person who would know for real is the designer.

ACJ says:
July 27, 06h

I’d say it’s up to the entity that holds the copyright of the original work. If you want to use a copyrighted [something]; contact the owner, and they’ll set the conditions.

Stephane says:
July 27, 07h

It’s a little hard with such a small picture of something so generic but I would go to step 5 at least. It might not be enough with some other photograph.

Ted Drake says:
July 27, 07h

As an artist (photographer), I have an open mind. I also worked as the web site manager for the local art museum and became the point person for copyright laws in the digital age. I still believe the work of art becomes yours as you’ve changed the original to give it your personal statement. There are times when #1 is valid. What’s the context? Is it being presented in a room with many images, each of them having a dark half? If so, #1 would satisfy the requirement of making enough of a change to make the image the new artist’s statement.

Have people used my images without permission? Certainly. Do I get upset? Not really, many of the times I’m flattered. Did I lose any money from their usage? Probably. But I have also gotten new exposure from them.

I’d send a link to my gallery web site, but it’s a case of the shoemaker’s family being barefoot. It is still horribly in the designing killer web sites era. A new one is always on the horizon.
Ted

jim says:
July 27, 07h

“all property is theft” Pierre Joseph Proudhon.

having said that, personally I feel once past stage 1, you’re on a looser, the original artist chose to copyright his work at that point, any modification of that work should mention the original artist as a source if not inspiration.

Copyright law is extremely complicated and some very nasty people make a whole pile of cash out of debating the rights and wrongs in courthouses and backrooms across the planet.

the whole thing should be scrapped to stop the weasels ‘earning’ a living, but then how would we protect our hard work?

perhaps by using the principles of ideas such as ‘copyleft’ and/or ‘creative commons’ where ‘fair use’ is predefined and artists are free to create new works <em>provided the original source is specified.</em>

http://creativecommons.org/

francey says:
July 27, 07h

I’m going to go out on a limb and disagree with everyone who commented previously.

The photograph that you editted was not created by you, and the person who took the photograph put effort into the photograph that needs to be recognized.

francey says:
July 27, 07h

I’m going to go out on a limb and disagree with everyone who commented previously.

The photograph that you editted was not created by you, and the person who took the photograph put effort into the photograph that needs to be recognized.

jim says:
July 27, 07h

everyone…?

0_o

Stephane says:
July 27, 08h

I made my first comment without looking at other answer (I didn’t want to be influence).

As far as music go, if you take a sample you are suppose to pay a royalty. If you copy someone else music, they can, and probably will, take you to court, a search on the web can probably find some court case.

As for design or art in general, you can check the definition for Derivative Work. A painting like Andy Warhol did with the Campbell soup or Marilyn Monroe and countless other as nothing to do with altering a photograph in photoshop. The act of “painting” something IS the work of art unless the is painting a copy of someone else painting or other medium. A good example of one artist who did go too far is Jeff Koon with a sculpture based on a photograph (http://www.ncac.org/artlaw/sum-rog.html, http://www.artslaw.org/DERIV.HTM, http://www.asopa.com/publications/2000winter/law.htm). The court found that Jeff Koon did a copy and wasn’t far enough from the original.

Concerning the photograph in this article, I stand by what I said before, depending on the subject, I still think no5 is far enough from the original.

Jonathan says:
July 27, 08h

I’m a graphic designer trained as a photographer; reading all the comments here, I don’t know where I can put myself in all this.

As a photographer, I wouldn’t let anybody, especially without my consent, use one of my pictures. Despite what some might think, photography is not just collection/reproduction, it is interpretation. It is more than the content of the image, whatever that might be. I won’t give you a composition or a communication course, but we all know the power of the image. And that power comes mostly from the talent of the photographer, while sometimes a little luck can help.

As a designer of the “digital age” (doesn’t that sounds great), I may use photographs in my work. Usually, they’re not the main content of the image; the work isn’t the sole result of the use of that particular photograph. But it surely had an influence, an impact. To put out a rule, I’d say that images used in commercial work should be paid for. But that would only be a rule.

We now have the possibility to create a new form of images, because we can browse the Web, take photos, logos, whatever and combine them using software. And part of the diversity and the richness (is that a word?) of a lot of images we see these days come from that new possibility. How many of those works would not exist under strong copyright laws?

Like anything else that has to do with new technologies, it’s all so new and so complex… Personally, I can’t take position, because I know I would contradict myself at some point. But what I know is that it’s a bit wide to say that everything — or nothing — is copyrighted.

75
pftt says:
July 27, 08h

If you get away with it then it is a matter of conscience. If you don’t…..hell if I know-

Caleb says:
July 27, 08h

So if a tree falls in the forest and nobody is there does it make a sound?? Granted you may not be able to tell this work came from an original photo as some stated the designer does know. Burden of proof would lie on the photographer or person who thinks the work is a violation of ther copyright. But where is the integrity of the designer? It seems that integirty is totally gone in the creative industry these days. It’s just crazy that people have no problem manipulating somebody elses work to their liking. I guess it will just always be a thin line. It’s just not one I want to cross as a creative.

Rob says:
July 27, 08h

I apologize if I posted twice: I had an issue w/ the preview page not loading.

It’s not the same as Warhol using soup cans or a photographer taking a picture of the building. In each case, a different medium is used to portray another. If Warhol had taken a Dali painting and obscured all but a portion of a melting watch people would expect to know that.

I have to agree w/ Shelley’s post (#40): a photographer would probably like to be contacted before you go about using their work as a starting point, especially when the medium is the same.

If you like a photo and want to change it into another image for your work, it seems like the right thing to do would be to ask for permission. If that’s not possible, take your own pic or try to find a stock version that’s similar, and go from there. The question on ethics should be put before the question of legality.At the very least credit the original photographer— they took the time and effort to inspire you.

July 27, 09h

Ethically, I’d have to say it become legit at step 6, when the attention was taken off of it. I think when the source has been so heavily distorted, it becomes safe to use. This is from a designer ethics point of view.

Legally, I don’t think it is okay any step, because you’ve still loaded someone else’s work into your digital imaging program and added to or taken from it.

July 27, 09h

Every single thing you, I or anybody “creates” is very arguably ripped off from any number of various sources and influences. That’s pretty much how we learn to do everything we do as people.

So if you’re looking for a rule, it’s this simple: the minute you alter anything in the slightest, it’s *technically* yours now. Wholesale copying is another story.

Beyond that it’s just a personal opinion, no matter how much you might want to think otherwise. That’s the long and short of it.

jim says:
July 27, 10h

Seth, i’m afraid you’re very mistaken

The ‘rule’ you mention is copyright law - break it at your peril.

inkheart says:
July 27, 10h

hee hee, this discussion is great.

Small Paul said:
“Come on, inkheart: surely, as a photographer, you don’t think that photos only consist of the objects they portray? The meat of the best photographs is their perspective; they give us a way of looking at the subject that we never would have considered.”

we don’t disagree there, paul. but i don’t feel i’m particularly special for finding a certain perspective, either. it was already there, and chances are many people have looked at something in that way and just never bothered to then take a photo. should i charge royalties based on certain tilts of the head?

as for the anonymous post who felt they’d “a-ha!”ed me, well, yes, i’m all for conditional rights. but not copyright. if you need it codified, http://www.creativecommons.org/ works quite well, but all that’s really doing is being very formal about good practices which artists as a community should encourage, rather than setting up a system which allows lawyers and corporations to make scads of money or allow people to pretend they’re so bloody original and fabulous.

beyond protecting income (within reason - ie. no “but i coulda made money from them too now that you’ve made me realize it by being inspired by my work”) and ensuring due credit is explicitly given, i don’t feel i have that many rights over thiings which are essentialy amalgams of all the art i’ve consumed throughout my life anyway. all artists suffer when people don’t relinquish a certain amount of control, aka sharing.

82
akbal7 says:
July 27, 11h

#2. It’s a photo that you turned into a graphic, changing over half of the total composition.

July 27, 11h

I mean really guys, it is truly very simple:

Taking someone’s work and reusing it, whether it’s a photo, icon, illustration, or website design — unless it falls under fair editorial or parody use — is illegal. Plain and simple.

If you, the original photographer, don’t have a problem with other’s using your image (see #48, Inkheart, above), that’s fine. But Inkheart also states he has no problem as long as…

“…credit is given, i’m not being deprived of income, and my work isn’t used for ideological goals which i may find reprehensible.”

Those are conditional rights. Copyrights, if you will. As the owner of a work, it is your decision how loosely or tightly you hold your rights — but they are your rights.

If I find someone using, altering, or reselling my icon work without legal license, they will hear from my attorney. I’m sure any professional photographer would do the same.

July 27, 12h

by law (at least in the UK) you have to change at leats 10% of an existing piece before you can call it your own.

July 27, 12h

I’m surprised to think I’m saying this — but as an artist and a web designer my income is tied directly to the works I produce, byet I see so much more good in freely giving. I’m unsure whether it’s truly flattering when others use your work, but I do know it benefits society by allowing for new derived works (and making a difference is what us designers always gripe about being unable to do effectively).

I can’t say I would ever ask another artist/designer/programmer/etc. to agree with my view here; but in my own life, I try to give as much as I can. Take my code and alter it, take my art and skew it, make new things for others to see and enjoy the creative spark. Government and regulations have already infringed too much and we lose great ideas daily for it.

I try as much as possible to be well read on all of the related issues, and can honestly say artistically I never use other’s work in my process. But in my web design I freely use snippits of HTML/JavaScript/PHP/CSS developed by others so long as it appears allowable (sometimes from communities of others :
see — http://www.simplebits.com/notebook/2003/08/14/minitab_shapes.html)

While I can only maintain my own integrity and freely allow others to take when needed from my own work (or to give at community sites such as www.sxc.hu) I hope others can see the merits in opening up our worlds a bit more. A book is a collection of words and can be copyrighted as a whole, with the words in that specific order and sequence. Similarly a website as a whole can be a unique work, but borrowed pieces of code or small design elements help us all I think daily to build bigger and better.

Great discussion, hope it makes us think before making seemingly simple decisions.

July 27, 12h

@ Josh

Yes but if you wanted to take anybody to court for image no.8 you wouldn’t stand a snowballs chance in hell of winning. Even if it’s acknowledged that the image in question was used. It can no longer be concidered wholly or in part to be a representative or a reproduction of the original. It can easily be argued that it is new and original art, no matter what it is based on.
I suposed ones mailage would vary from country to country, although internationally speaking copyright laws are fairly similar.
Besides, taking someone to court for something that doesn’t even look like something you made tastes a bit of sour grapes to me.

July 27, 12h

Come on, inkheart: surely, as a photographer, you don’t think that photos only consist of the objects they portray? The meat of the best photographs is their perspective; they give us a way of looking at the subject that we never would have considered. Otherwise, two photographs of the same thing would have precisely the same merit.

Sorry, completely off the general topic there. But good photography shouldn’t be dissed.

88
Chris says:
July 27, 12h

Copyright law is hugely flawed: that’s pretty obvious to me. Were it not, this discussion would amount only to “should we obey the abundantly clear law or not?”

If you change a digital work enough, it DOES become your own work. I mean, what if step 2 had been to darken the whole thing so it was black and then put something entirely different and absolutely unique over it? To say it’s stolen simply because it started as someone else’s work is too simplistic, and if it’s the law, the law is too simplistic.

I like the “point of unrecognizability” argument, and think it nicely sums up the areas uncovered by parody, fair use, and theft. It’s subjective, yes. No, you can’t make a law about it. But not everything has to be handled by law. Especially in the digital world, there’s all kinds of ways to get people to back off stealing. Pirated sites get slammed with mail proclaiming the “developer” a soulless jerk, and more often than not get taken down. If your work has obviously been stolen, blog about it, and you’ll find enough people who feel that original creative work is important enough to back you up. Remember, the original question wasn’t “what’s the law,” but “at what point does it become mine?” For the sake of discussion, think outside the law for now

July 28, 01h

@ jim

I know. My rule is not based on the law, it’s based on common sense. :D

Now, if somebody copied a design of mine and added one letter, I would not say it is theirs. I would be upset, so that is not what I meant to say. I just meant that in the most technical sense, the minute you change something at all, it’s not what it was, and therefore if you claimed ownership over what it was, you on longer own what it is since they are different things.

*blink*

I dunno, I’m tired and way too sick of waiting for this stupid database to download… plus, legal mumbo jumbo makes me hurt.

90
Dave Mo says:
July 28, 01h

Sorry to come in so late to the discussion, but I think Simon’s post #23 pretty much nails it for me as a the appropriate logic and analogy to the issue here.

Certainly, there may be some subtle and “hazy” legal and possibly moral/ethical areas, but those change on a case-by-case basis.

In a digital example to his “collage” comparison, what about these annoying photo montage images that were so popular a year or two ago? Those didn’t alter the original images in any form just cleverly assembled them with hundreds of other images to produce an entirely different image.

What do you think would be the courts ruling on that if one of them were your copyrighted image?

What if you used that same technique to produce an image that made a political or social comment using images from the media and press, which are sure to be heavily copyrighted and legally enforced?

I’ve had works of mine “appropriated” in part and in whole without my permission several times in the past, before the digital revolution, and I was told that the copyright law at that time was, that if the copy differed from the original by 25% or more then it wasn’t practically enforceable. It wasn’t worth the time, money and headache to deal with it so I sucked it up and I was left with my moral indignation as comfort.

Moral: There are always going to be those less honest or industrious that will take or use your efforts to their own advantage. What you can do about it depends on your time, money and lawyer.

91
klarck says:
July 28, 04h

Several previous comments try to frame the issue in an ethical or moral framework. I don’t see ownership of intellectual property as an objective truth. The “ownership” of a piece of ip (or the control of its use) is a contrived notion, simply meant to serve a society’s economic ideals. Society, in one way or another, grants a set of rights to ip creators that are believed to stimulate the creative process so that a greater economic good can be realized.

If it were up to me, derivative work would be defined as anything that happens after the orginal makes that sublime transition from inspired to inspiring.

But it’s not up to me. I’m not trying justify looting artists work.

“at which step of the design process above does the work become ‘legitimate’”?

It becomes legit when we agree, via law/consensus/edict, it becomes legit.

July 28, 04h

Haven’t we had this discussion before?
http://www.mezzoblue.com/archives/2003/12/18/css_copyrigh/

July 28, 06h

Rob said:
“It’s not the same as Warhol using soup cans or a photographer taking a picture of the building. In each case, a different medium is used to portray another. If Warhol had taken a Dali painting and obscured all but a portion of a melting watch people would expect to know that.”

I don’t agree with that. Collages and montages use pieces of existing works but they are arranged and modified in such as way as to make new art. Even if part of the original is recognizable as Dali’s melting clock or the finished work is a representation of Dali’s melting clock… the work is new and unique.

The medium did not make it unique. If Warhol had painted a exact copy of soup label or a photographer took a picture of the soup label and used that canvas or picture to label soup… that would be a copyright violation. Nevermind that they didn’t copy it in the same medium. The method and effort are not relevant to whether or not the new work is unique enough to claim ownership.

July 28, 06h

This is a toughy - but I think we should look to moral guidance rather legal requirements.

I’ve posted my thoughts on this issue through my blog, in the article ‘A Can of Copyright Worms‘ — http://www.interactiveleigh.co.uk/blog/archives/2004/07/a_can_of_copyri.html”>http://www.interactiveleigh.co.uk/blog/archives/2004/07/a_can_of_copyri.html

July 28, 06h

First off, to definatively answer the question my belief is step 1. Now I say definatively because, even though a person took effort to take the picture, it does not belong to them. Maybe the material the image is on is but, not the image itself.

Now, just know this, the idea of property has been debated for decades, I have to just say that you can’t own something like a photo. I mean lets be serious, if 100 paparazzi take a picture of a celebrity is that photo theirs? No, its not, its just a resemblance of something else that anyone else could mimic or copy, even to a 100% exactitude. So, my belief is that the step is 1.

Jacobus says:
July 28, 06h

From a copyright point of view, I would say that all changes to the image would still be in breach of the copyright, if a digital signature “copyright” was embedded into the image. It will be difficult to prove “creation of original” otherwise.

That was my 2c worth!

97
Adrian says:
July 28, 10h

For me, copyright should not give the owner of image 1 the power to prevent the public from viewing image 8. The striking aspect of image 8 is the artist’s use of filters to create distortion, which IMHO makes it a new artpiece. If copyright means that works such of image 8 can be restricted from public view, then surely, copyright needs reforming.

But as others have mentioned, there are precedents. It is okay to photograph the statue of liberty because your final work produces a unique perspective that in all liklihood hasn’t been captured before. IMHO, Dave’s image 8 can also be considered a unique perspective of an existing work. The difference, however is the public knows that the photographer was not responsible for the creation of the statue of liberty - the original piece of work. As such I think it is fair for Dave to ask the original author if they would like to be credited.

July 29, 05h

A brilliant thought exercise in why copyright is such a can of worms here in the digital age.

I believe this demonstrates that there is no clear answer as to where ownership of ideas ends and fair use begins… so what benefits society the most? Absolute protection for authors, some limited fair use, or the abolishment of copyright alltogether?

Hell, I don’t know.

July 29, 07h

It is asked at which step does it become ‘legitimate’. I am of the opinion that it becomes legitimate at image 2, with the first filter. Why? Because it’s different. It’s no longer a daytime photo, it’s a half evening-ish/half day photo.

Continued at http://patrick.geek.nz/2004/07/30/design-theft/

When does it become acceptable? Step 6. Why? I have no idea—that’s just my gut reaction. Though, if it was my image in #1, I don’t know if I would consider it acceptable at any stage. There simply is no right answer.

101
Gregg G says:
July 29, 11h

I don’t know if this helps but I have a real world business example for this.

A friend works at a place that reproduces works of art. He works almost all day just copying other peoples work. They are able to do this as long as a certain % is different. I would have to ask him the % again, but at that point (I think it may have been 20% but don’t quote me) it is considered a “derivative” work and the company does quite well selling these.

As it has already been said, this is defining legality not morality. Is there a “code of artists”?

July 30, 06h

I would say either 4 or 5. Great experiment.

103
David Bohlin says:
July 30, 10h

I hope this doesn’t get treated as flame-bait because it is not meant that way, but…

There seems to me to be two camps here. Those who have a ball and say “It’s my ball and you can only play the games that I want you to play, or else I am taking it home!” and those who have a ball and say “Hey, I have a ball anyone want to play a game?”

Both are right, but I remember that the one who was willing to share the ball went to a lot more great parties than the other guy did.

104
Joni says:
August 01, 09h

What is the difference between a photograph, which is a photographer’s interpretation, if you will, of a scene he captured with his camera and a designer’s (graphic or web) further interpretation of a photograph or other piece of artwork by manipulation of it through means demonstrated with the subject matter at hand?

Notwithstanding all of the copyright issues, yes, the photographer owns the photograph, it’s his interpretation of the subject it represents. The only thing I find somewhat repugnant in all of this discussion is that everyone is basically saying, any design that is based on another’s photograph (or arguably, other artwork) is a rip, plain and simple. Ignoring the talent necessary to manipulate that artwork in such a way that it becomes something else, something quite removed from its beginnings as a photograph.

Adrian says:
August 14, 10h

I’d have to say at the point that you can’t immediately recognize it from the original.

In this instance, I’d have to say between 5 and 7.

Clay says:
August 17, 12h

How about you do the exact same experiment, but you do it with a photograph of a celebrity. For instance, take a very skinny girl, and photoshop her so that she has large-breass, a big backside, green hair, and a wart on her nose. Then, modify the color of her skin to, say, a shade of purple. Who owns that image? The person who took the original photograph, the subject of the photograph, or the person who manipulated it?

Couldn’t the case be made that the photograph actually belongs to the subject?

107
Dr Angstrom says:
August 18, 05h

There have been a few comments about music copyright, as a published musician I can clear this up, a bit.

If I sample a Britney drum track and loop it with me singing on top, all my royalties will go to Britney. That’s because I used her recording.

If I take inspiration from a Britney track and create a drum track that is as close as possible - the royalties are mine. The copyright is in the recording and then in the performance, hooks and lead melodies - these need to be changed by one note (whether in pitch or timing) to exempt copyrighting.

John Lennon used to anguish over the releases of early Beatles material, fearing that it was WAY too close to his source blues 7” . In fact the ‘originators’ of this music had in turn been ‘influenced’ by a long chain of musicians.
read about Lennon’s influences:
http://www.guardian.co.uk/arts/news/story/0,11711,1164013,00.html

Quote:
“Lennon admits: ‘Especially in the early years I would often write a melody, a lyric in my head to some other song because I can’t write music. So I would carry it around as somebody else’s song and then change it when I got down to putting it on paper or tape - consciously change because I knew somebody’s going to sue me or everybody’s going to say “what a rip-off”.’

Many, Many artists who would be classed as top musicians worked this way. Elvis, David Bowie, Me , etc, etc.

In modern sampling times, many tracks are now out of license as the bands star fades and their (now obscure) records become staple sampling fare. This in turn leads them to enjoy a cult revival and their original recordings often get a new publishing deal.

So where does the individual morality lie?
As far as I am concerned I am not an individual when it comes to design.
Try being truly individualistic, they lock you up!
;)

August 19, 06h

Quote:
“All artists are thieves”
- Pablo Picasso

Synopsis:
‘There’s no such thing as original thought’
- Plato

Even ownership may be considered as theft.

artist says:
September 08, 10h

the point of whether it becomes your own work NEVER applies. you start with someone elses work. if you use someone else work period, your a hack and not a artist. photography is a hobby of mine. i feel that if someone was to use my work for something other than what i approve, is just plain wrong. i choose how my work is published. why? because someone hacking my work degrades it and affects me as business and my name as a product. if you dont have the talent to take a picture or design something, then go to school (make the investment i have and other artist have) or get out of the kitchen.