Photo to Sketch without permission

[doubleg]

I am the unpaid/volunteer photographer at my local gym and there is a link to my photos through the gym website. Due to the high volume of hits on my smugmug site, I started watermarking the photos to protect them and I do provide an opportunity for gym members to purchase them at a minimal cost. The gym has obtained some noteriety in the CrossFit community due to their success in winning competitions so it's not just local members viewing the photos.

One of the trainers (now Ex-trainers) has started an on line clothing business selling Tshirts etc relating to this sport. This past weekend at a challenge, he was selling some of his merchandise. It is very obvious he has used my photos to create a sketch/graphic on his T shirt line. He freely admitted to the person whose likeness is on the tshirt that his graphic designer based it off a photograph of her. To get around this they made her chest bigger and drew in long hair but EVERYONE who saw it came up to me and remarked about it.

Ok- so long story short. Did he have a right to do that without my permission (which I would have given to him). But more importantly I want to put a disclaimer on the galleries that no image or likeless can be made from my photos without my permission and am not sure how to word it.

I guess what irritates me the most about the whole situation is that he didn't even acknowledge it. It was just sneaky.

[RLucas]

The way I understand it is, if your photo is "All rights reserved", then no they did not have the right to use without permission. I think even by modifying it, they infringed a little more than just usage rights.

[theosus]

Originally Posted by doubleg

This past weekend at a challenge, he was selling some of his merchandise. It is very obvious he has used my photos to create a sketch/graphic on his T shirt line. He freely admitted to the person whose likeness is on the tshirt that his graphic designer based it off a photograph of her. To get around this they made her chest bigger and drew in long hair but EVERYONE who saw it came up to me and remarked about it.

I would say that sucks - but have a few questions:
Did the artist hand draw her from a picture you took, or was this one of those "photoshop filter" type things where they took your photo, put it through photoshop and made it look like a sketch?
IMO - If the artist hand drew it, and changed it (her chest and hair) - he created a new seperate work, and he's within his right to do it. However - if he went the other route thats just wrong.

[Jonbar18]

Originally Posted by theosus

I would say that sucks - but have a few questions:
Did the artist hand draw her from a picture you took, or was this one of those "photoshop filter" type things where they took your photo, put it through photoshop and made it look like a sketch?
IMO - If the artist hand drew it, and changed it (her chest and hair) - he created a new seperate work, and he's within his right to do it. However - if he went the other route thats just wrong.

+1 If it was done by hand, it was his right to recreate a work. He didn't even have to change it.

[RLucas]

Originally Posted by Jonbar18

+1 If it was done by hand, it was his right to recreate a work. He didn't even have to change it.

Are you sure? It may fall under fair use, but I hardly see this as a fair use argument.

Derivatives have to be original enough to stand on their own to constitute a non liability. Since he did say that several people recognized this as a photograph of his, I doubt it was changed enough to count.

[doubleg]

Originally Posted by theosus

I would say that sucks - but have a few questions:
Did the artist hand draw her from a picture you took, or was this one of those "photoshop filter" type things where they took your photo, put it through photoshop and made it look like a sketch?
IMO - If the artist hand drew it, and changed it (her chest and hair) - he created a new seperate work, and he's within his right to do it. However - if he went the other route thats just wrong.

Unfortunately his on line site is not up yet so I can't snag a photo of the tshirt and put it side by side to the photo I took. I do not know how the Graphic artist re-created the photo and I would guess he would say he sketched it.

Moving forward I would like to make sure I have a disclaimer on the gallery page. Any suggestions on wording?

[Aleix]

Dear doubleg, I believe this will be helpful to you (because the modified image is 'recognizable'):


Per The Copyright Act of 1976 (effective in 1978), there are three fundamental criteria to establish copyright:

• Fixation to a tangible medium
• Originality
• Minimal creativity

Registering your original work with the Office of Copyright is not required for intellectual property to be protected by copyright.¹

Names, titles, slogans and short phrases are not protected by copyright law but may be protected under trademark, tradename or slogan mark laws.

¹While registering for copyright is not required, the legal registration with the Office of Copyright will benefit the copyright owner should an issue of infringement occur. Registering copyright is beneficial because you cannot sue for copyright infringement without registration.

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

No. Because one of the exclusive rights granted under copyright is the individual right of the copyright owner to create derivative works from their original copyrighted material.

Modifying or altering an image is infringing upon the copyright owner's rights unless expressed permission is granted or the modification falls under fair use (which is highly unlikely).

In a few court cases, a modified image was not considered infringement because the original image was no longer recognizable due to the extent and variety of the alterations.

Altering or modifying published works is strongly not recommended because most artists, writers, musicians, photographers, etc., can recognize their own work even through modifications.

Many people believe the "myth" that if they change an existing image a percentage (10%, 30%, etc.), then they can legally use the image. Be advised: that is not the law.

Source: R.I.G.H.T.S.

[Jonbar18]

Originally Posted by RLucas

Are you sure? It may fall under fair use, but I hardly see this as a fair use argument.

Derivatives have to be original enough to stand on their own to constitute a non liability. Since he did say that several people recognized this as a photograph of his, I doubt it was changed enough to count.

It's iffy, but it should be legal. On a general basis, it is legal to recreate a photo by taking the exact same photograph yourself. Copying the photograph by drawing it is also in most cases legal. If i saw the Mona Lisa and drew it (even if Da Vinci was alive), it'd be legal unless it fell under some other law

[Jonbar18]

It depends if it was the original image (copied and change in photoshop or whatever) or if it was recreated from scratch by hand. This applies for the former

Originally Posted by Aleix

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

No. Because one of the exclusive rights granted under copyright is the individual right of the copyright owner to create derivative works from their original copyrighted material.

Modifying or altering an image is infringing upon the copyright owner's rights unless expressed permission is granted or the modification falls under fair use (which is highly unlikely).

In a few court cases, a modified image was not considered infringement because the original image was no longer recognizable due to the extent and variety of the alterations.

Altering or modifying published works is strongly not recommended because most artists, writers, musicians, photographers, etc., can recognize their own work even through modifications.

Many people believe the "myth" that if they change an existing image a percentage (10%, 30%, etc.), then they can legally use the image. Be advised: that is not the law.

Source: R.I.G.H.T.S.

[Aleix]

Originally Posted by Jonbar18

It depends if it was the original image (copied and change in photoshop or whatever) or if it was recreated from scratch by hand. This applies for the former

Yes, obviously. I forgot mentioning that what I posted applies only to use of the copyrighted photo as a direct means to obtain the derivative work, e.g by using the PS filters or so.

I'm not aware of the details concerning fair use policy in US law, but would commercial use be allowed under that policy? I know that for instance Wikipedia uses many images under this policy, but they're small resolution and non-commercial, and so on...