copyright and art

[IwroteIt]

If you use an image as the basis of a work of art/graphic design/photoshop image - to what extent do you have to change it in order for it to be considered an original work of art and not in contravention of any copyright issues?

[Smokin]

there is no black and white answer, it just really depends on what you have and what you've done.

A fair use analysis can get complicated and even then there is no garentee that you would win if someone sued.

[Haviltex]

even though there is not a black and white answer, there are some relevant stipulations...

first of all it depends on what type of image it is..where did you get it? is it part of the public domain? is it creative common licensed? and if so, what is restricted, and what not.

than on the other hand, if you want to use an image and change it so it will not be a copyright issue, handle the following rule: make the OG image not recognizable and (ii) if it still is, make sure it is an unsubstaintal part of your new work

[IwroteIt]

thanks for the replies - answer - images of a celebrity taken from news images mostly and although still recognisably the person, subjected to considerable digital manipulation and total alteration of the background. Although because of the pose often the original is still identifiable.

[Isaac]

If you use an image as the basis of a work of art/graphic design/photoshop image - to what extent do you have to change it in order for it to be considered an original work of art and not in contravention of any copyright issues?

This question is asked here pretty frequently.  My personal opinion is that the question suggests a completely incorrect way of analyzing the potential infringement.  Infringement is based on what is copied and is not excused base on how much did not get copied.  If you start with an image having a copyright belonging to someone else, the infringement analysis is based on those elements that are left.  So even if you change the overwhelming majority of an image, if you copy protected infringement you are potentially an infringer absent some defense such as fair use.

In some cases large amounts of copying may be a non infringing fair use, while in other cases a small amount of copying is indefensible infringement.

[Smokin]

Yeah, do a search on this topic, youll find alot more info and in depth answers.

[IwroteIt]

Not sure if I don't ask the questions specifically enough or if people just don't like giving clear answers.

So here is the question in SPECIFIC detail!

I want to make low resolution images (72 DPI - good for onscreen but cannot print) for fans to use as computer backgrounds of a celebrity. I want to share them on my blog for free. I would like (on an honour system) to ask people if they use them to donate to this celebrities' charity. (So if there is any financial return I don't get it). I just want to know how to do it in such a way that the "nice person"  who runs the celeb's website can't get her knickers in a twist about me doing so.

I mostly use close up images of the face/upper torso (what would be called a 'headshot') I can't alter the image so the face is unrecognisable as that would kind of defeat the purpose but the background is completely different, and I completely alter the image so that it is no longer a photographic image. If you are familiar with the original photo it remains recognisable though because of the clothing or the pose. 

So my question remains - at which point - does it stop being a photo and start being 'art'.

There must be a fairly simple answer to the question. I am thinking of other 'art' I have seen using commercial images such as the pop art images of soup cans - it is plainly exactly the same product but it's still considered art? So where is the line?

[BobRoberts]

Hi Iwroteit,

First, please don't think that people are trying to purposely give vague answers to a question.  Many of the questions depend on the exact particulars of a situation, and even then, do not always have a black-and-white, right and wrong answer, but rather often fall in the gray areas with sometimes complex analysis.  That being said, what bothers me about your situation is more along the lines of what Isaac said. 

The basic test for infringement is substantial similarity.  Is your work (or the significant portions of it) substantially similar to the 'original'?  I ponder about what is "original" about a photograph of a celebrity (especially a head/nect shot).  Really the basic pose, the expression that the photographer caught (or brought-out) in the celebrity, and possibly the wardrobe.  You seem to be keeping all three of these.

Next, I think about the fact that you are beginning with the copyrighted work, and making alterations to achieve a different work.  Your question:
     "to what extent do you have to change it in order for it to be considered an original work of art and not in contravention of any copyright issues?"

To me, you may indeed be coming up with a 'different' work of art that merits copyright protection.  However, though you may end up with a totally different work of art, it seems that your 'new' (altered) work would be what is called a Derivitave Work of the original.   As such, others would need permission in order to use your 'new' work (i.e., copy, distribute, make derivitave works, etc...) , but you would need permission from the original copyright holder to do the same.

There is the possibility that fair-use may apply.  This is also an analysis that doesn't always (often?) yield a black-and-white answer.  Essentially, "fair use" means that you have infringed the original copyright, but your infringement was a "fair use" of the original, so you are OK in that use.  Fair Use if often a complex analysis. 

Could you just ask permission to use the photograph?  Find another photo that is public domain?  Do you have a friend that is a pretty good artist that could paint you a picture of the celebrity (don't paint the exact pose you have)?

Good Luck.

[Kaitlin]

Hi IWroteIt,

Your spelling of "honour" (which Americans spell "honor")  in your earlier post prompts me to raise the caution that the advice in this forum is usually based on US law, unless otherwise noted.  Hope that's what you were looking for.

[Carmel]

I purchased a series of drawings from a local artist to include in a novel I have written and will be self publishing. The artist drew them in black and white, however, I would like to color them. My question is, if I paint these drawings myself and then use the colored images in my book, would I be infringing on the artist's rights?

[ladyluck]

Ok folks, I am having nearly the same trouble with this art/copywrite problem. I know you guys have discussed this a million times but i have not.  I decoupage, make jewelry, jewelry boxes and purses from cigar boxes.  If you don't have a theme, they don't sell. Let's say I am going to make a classic rock purse, using decoupage techniques. I go looking for pics on the internet trying to find a lot of various size pics to add to the box. Decoupage is overlapping by the way, kind of free art. Many other objects, and stickers would be added to the box.  I might have used pics of Eric Clapton, Janet Joplin, Jim Morrison, etc in the old days. God only knows who took those pictures, there is no way that i know how to find out who to ask for permission cause they were just random photographers at random times in history. 

As for the Twilight problem, according to ebay, you can't even use the name to say your bracelet is Twilight inspired, a bracelet you made by taking the odd random picure or cutting faces from posters to add to photo charms and put them on a charm bracelet. One lady on ebay who uses pictures associated with twilight to create jewelry, states she had to see her lawyer and copywrite her o.wn jewelry...jewelry made with pitures unchanged from Twilight posters.  Sure she is inventing new and different jewelry concepts other than those generated by Twilight, but she is also using their material to make that jewelry.

So what do you guys think about all of this.

[Josif Abraham]

It protects the author's right of a work. It prevents other people for stealing a creation and putting it under their own name.

[JSonnabend]

It protects the author's right of a work. It prevents other people for stealing a creation and putting it under their own name.

That's fine as far as it goes, but it's an incomplete and misleading statement of the law and doesn't answer the previous poster's question.  Are you sure you're not answering just to get your personal injury lawyer link posted (in a wholly irrelevant forum, I might add)?

- Jeff

[DogDayPM 9er9er9er]

C'mon, Jeff, he's a TruckAccidentAttorney.  What if the books in question were being transported by truck, fell out the back, and caused a big pile-up accident on the 610 loop?

6 Degrees of Kevin Bacon, you know.

[Kaitlin]

C'mon, Jeff, he's a TruckAccidentAttorney.  What if the books in question were being transported by truck, fell out the back, and caused a big pile-up accident on the 610 loop?

Good Lord, you're right! 
Thought perhaps you were joking about the trucking, but the link actually does say TruckAccidentAttorney! 
Ah, to enjoy the convivial association of professionals in the bar....