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Infringement, or Fair Use? Have a look.

The views expressed are those of the author and are not necessarily those of Scientific American.

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As regular readers of this blog know, I contend with a great deal of unwanted commercial copying of my photographs. Most are unambiguous infringements: pest control companies pasting my photos onto their coupons, for example.

But the copyright line gets fuzzier when artists trace my photographs into various derivatives. Copyright law in the United States allows some types of downstream copying under its Fair Use provisions, especially when the copies are used as satire, commentary, or the images are sufficiently modified from the original so as to be transformative. How modified is enough? Well, that’s a gray area, and courts have unhelpfully decided these cross-medium cases in both directions.

To illustrate this ambiguity with real-world examples, here are four recent instances where my photographs have been adapted without permission. I have chosen these particular cases because, under various conceptions of copyright, different people may reasonably reach different conclusions.

Infringement? Or Fair Use?

1. The Stock Drawing

source: Stock illustration sold at Dreamstime, by Iskudraite.

2. The Children’s Book Illustration

Source: an interior illustration by Emma Stevenson for the book Killer Ants.

3. The Street Artist

Source: Street art in Burlington, Vermont. Artist unknown, photographed by “Metal-Bender” at DeviantArt.

4. The Bizzaro Fly

Source: the header panel for Sunday’s Bizarro, a syndicated comic strip by Dan Piraro.

I have my own opinions, of course. I will share these, and their resolutions, in a subsequent post. Before then, I’d like to hear what you think.

Alex Wild About the Author: Alex Wild is Curator of Entomology at the University of Texas at Austin, where he studies the evolutionary history of ants. In 2003 he founded a photography business as an aesthetic complement to his scientific work, and his natural history photographs appear in numerous museums, books and media outlets. Follow on Twitter @myrmecos.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. 1:32 pm 07/22/2013

    Woah! Unquestionably, these are all 100% derivative works. In other words, they all constitute copyright infringement. These artists are sloppy and are not doing their homework. As a rule, you should have multiple references and should be confident enough in your drawing skills to alter the perspective so you’re not copying any one pose from your references. Arg, Alex. So frustrating!

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  2. 2. khill 1:56 pm 07/22/2013

    I’d say #2, and after some thought, maybe #4, are infringing.

    1. It would be hard for me to say that a cartoon serves the same purpose as a realistic photograph. And then on top of that the eyes/mandible have changed. I’d file this under transformative.

    2. Looks like some simple photoshop manipulation or down-sampling of the color space.

    3. It is extremely similar. The change of medium is pretty striking however. A lot of meaning in art is contextual, and this obviously have an extremely different context.

    4. This is probably the closest call for me. It evokes a very different feeling certainly than the original, which might be considered transformative, but the technical manipulation of the image is pretty simple. Looking at the strip I’m going to come down on the side of non-transformative. It looks like he wanted a realistic picture of a fly to juxtapose with the cartoons, which would mean that he probably should attribute/license.

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  3. 3. stephaniedavidson 2:21 pm 07/22/2013

    I wish I had a research class right now — this would be an excellent example (if you don’t mind, I might keep it to use in the future?). I’ll be interested to read the comments you receive, though I’ll note that the analysis for infringement generally precedes the analysis for fair use. That is, fair use is an affirmative defense raised after infringement is shown (or conceded).

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  4. 4. TheHymenopteran 3:29 pm 07/22/2013

    I think that as soon as you use someone elses work as a template for your own then you need to credit them. To not do this is at best lazy and at worst a complete disregard of the creativity and effort that goes into any art.

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  5. 5. ardentmoth 4:04 pm 07/22/2013

    #2 _might_ be infringing. The others are obviously transformative.

    #copywrong; the way we handle copyrights should be completely rethought.

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  6. 6. jasongoldman 4:15 pm 07/22/2013

    I think the first and third instances are reasonable, while the 2nd is definitely an example of infringement. I’m on the fence about the fourth, but lean towards infringement as well. (Though, even in the first and third instances, credit ought to be given simply because its the right thing to do.)

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  7. 7. ianai 3:49 pm 07/23/2013

    I am pretty sure #1 is “transformative”. As another commenter mentioned, cartoons are different than photographs, plus the cartoon has a personality, even a sex. (Perhaps I’m being silly, but I think the ant looks female – which is silly….)

    As for the rest, I believe they are all infringing, especially #2. I could see someone arguing #4 is not, but I do not see any transformation there.

    Not sure what you can do about #2, especially since the photographer really had no way of knowing the street artist copied your work.

    Good luck. And I am really ashamed of the system we have in the US. (Life of the artist plus what? 100 years so far?) I wish it could be fixed, but we all know it will not be as long as there are billions of dollars behind the status quo.

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  8. 8. oldfartfox 8:50 pm 07/23/2013

    I think #1 is good to go.

    #2 is full on infringement.

    #3 is damned good for street art, but I can’t see image flipping as transformative.

    #4 I find iffy. Is it is or is it ain’t???

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  9. 9. Tsate 9:09 am 07/24/2013

    The thing is it’s not so sure thats all of your works are protected. The copyright protection isn’t automatic as everybody seem to think, you need originality (or in some cases / some type of work : sweat of the brow). Your creation must be original and in this way simple picture or instant photography or even well thought photography are not protected by copyright. It’s important to remember that copyright is the exception not the standard. So IMHO the four picture as photo of reality even with, i suppose, long post traitment to remove what isn’t the ant/fly aren’t subject to copyright. It would of course be for a judge to decide but its a bad habit to think everything is copyrighted.

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  10. 10. Tsate 9:10 am 07/24/2013

    forgot a few words : even some well thought photographies are not protected by copyright (case law).

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  11. 11. PeggyReynoldsStudio 3:58 pm 08/28/2014

    Hi Alex, I’m Peggy Reynolds and the photo, #3. The Street Artist is mine. It does appear that your photo was used as reference. Ironically, I found this as much of my work online is being stolen and misused. I’ve been google image searching my work. I seem to remember a NYC artist who painted a mural based on a photo without permission. The photographer successfully sued and won. Thank you for crediting my photo but photographer to photographer, being notified that you were including my photo in your article would have been appreciated. Your photos are amazing. Thank you, Peggy Reynolds

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  12. 12. PeggyReynoldsStudio 4:00 pm 08/28/2014

    Response to Tsate regarding photographers and copyrights:

    To copyright your photo, you can go about it two ways: the lazy, free way or the legal way. According to the Berne Convention (which I recommend reading so you better understand what it really covers and how it legally protects you), as soon as you press down the shutter on your camera you own the image that creates. The copyright is automatic and instantly yours. You own the copyright of that photograph for a minimum of 25 years (duration of copyright depends on the medium). It does also state that people can use* your work as long as they credit you with it. *Please note that this only extends to situations involving teaching purposes or journalistic reporting of current events in print or broadcast as per the Berne Convention sections 10, 10bis and 11bis(3) of Article 9(2). The Berne Convention does not ensure you will get paid every time someone else uses your photo. It does not clarify how you are to prove that the photo, if it were to come into question, would be proven as yours.

    The copyrights as per the Berne Convention are international.

    “The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.” (Wikipedia)…

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