My photo of a Jaguar E-Type from Flickr being used on Gap clothing designs

I’m sure that The Gap has a totally awesome explanation for why this photo of mine, published under the Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0) license, is apparently being used by babyGap on the Grey Pumice version of the “Thermal body double” onesie (SKU #785589) and the 2-in-1 moto one-piece at gap.com.

Readers of Jezebel, YCombinator’s Hacker News, Media Bistro’s Unbeige, Styleite, SFist, and more all seem to be curious, too.

57 comments

  • At first I thought “it’s a front-on picture of an E-type Jag, how can you tell”, but having looked at the details you highlighted, you’re entirely right, it is your photo. Why they couldn’t go out and take their own picture of an E-type an avoid any issues, I don’t know; I guess they figured the image was generic enough nobody would know. And while the principle of credit where credit is due stands, it is a generic image. I’m not sure the level of outrage is really proportionate to the theft here.

  • @ euph, Sure, by all means, what was this person thinking anyways. I mean They are GAP and he is just a troll as far as these things go. How DARE him stand up for 1.) HIS RIGHTS… He should be quiet and also give up 2.) HIS RIGHT TO FREE SPEECH.. I myself am just a layman but here are a few points. 1.) People get PAID for ads and designs for clothing so there is prospective money involved. 2.) PRIDE if some1 takes a picture of something because it catches their eye and you want it AT THE VERY LEAST “ask” WOW there’s a concept..I’m sure ANYONE would be thrilled to at the VERY LEAST have the bragging rights to say I’ve designed for a major clothing manufacturer .. The things you are NOT taking into consideration, perhaps the person this image was stolen from does NOT agree with ANY of the standpoints, views, etc that the business employs in everyday ethics and the way in which they conduct business. My question sir and excuse me if any of this comes off as rude, YOU were NOT the one being violated in any way by what has transpired so what in GOD’s name gives you the right to decide what is “Proportionate” ?

  • I’m pretty sure this falls under fair use. The image is modified enough to be unrecognizable compared to the original. I mean anyone taking the time to remove that ghastly background should be applauded.

    Secondly, from just a common sense rule of thumb, I consider (and I’m a photographer myself – albeit not a pro anymore) that it’s really irrelevant if the photos that are stolen are not something you’d consider a work of substantial quality. What I mean is that the photo wasn’t all that great anyway so it’s not like they would have bought it.

    Thirdly, be a man about it. So you posted something on the open web for people to admire and be inspired by. Didn’t you expect that someone would just fetch it and use it somewhere? That is one of the drawbacks of publishing something so openly. And come on, it’s a damn compliment they even did that.

    And hell, if you can afford a lawyer maybe you can get some cash from them but i doubt it’s worth the effort

  • Is it your car?

  • @eydyran So because you think its not the greatest photo ever, its perfectly fine for The Gap to steal it and profit off of it? The quality of the work stolen does not matter at all. The Gap didn’t have the rights to use the photo and stole it. Its as simple as that.

  • @eydryan: wow, so if a large company that is perfectly able to either hire a photographer or pay for a picture just picks something off the web it’s ok because ‘the picture isn’t all that great anyway’? what if they had taken one of your ‘pro’ pictures without your permission and replied ‘well, it wasn’t good enough to pay for’ as an answer?

    then you say that he asked for it by publishing his stuff online. that’s the same bullshit we hear here all the time. posting something online doesn’t make it free for anyone to use, regardless of the quality of the work. people like you saying stuff like that gives people the wrong ideas, so this kind of stuff keeps on happening.

    if this was a kid who wanted to make some extra cash selling t-shirts i’d understand. he should be informed of copyright laws, apologize and stop selling them. but this is a BIG company that knows very well what copyright is. they have no reason whatsoever to just pluck an image from someone’s flickr.

    and no one should ever see that as a compliment. i’m an illustrator, and i often get requests from people who want stuff done for free ‘but you’ll get the publicity’… just no. everyone gets paid for the job they do, and so should i.

    i hope this ends well for this guy.

  • He asked for it by posting to flickr…. She asked for it by wearing a short skirt and too much makeup.

    Buy yourself a real argument. Someone got paid to do this design and they took a cheap shortcut and broke the law doing it.

    Fair use is in no way applicable here. This is a commercial work. The license also explicitly states “no derivative works.”

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  • Just curious; How about the designer of the car? Taking a photograph of something doesn’t necessarily make it yours; I can make a photo of a painting and then I still don’t own the copyright to the painting.
    I’m not sure if that applies to this case as well though. Anybody knows? It’s something to keep in mind if you decide to sue.

    And people should shut up about that ‘you put it on the net, you ask for it’ nonsense. If that’s an argument, people should stop ever posting their art online, would you like that?! Copyright laws are there to protect the artists who share their art with others.

  • Clearly this is an abuse, and it does not fall under “fair use.” You can’t make money off someone else’s image. Clearly stated. You can’t sell copies or derivative works. It’s irrelevant whether the image is “good” or not. If it isn’t – just go find your own car to photograph. How hard is that?

    And apparently other companies are also stealing photos off flickr:

    http://www.arkclothing.com/Ark_Male/Shop_by_brand/Cloak_and_Dagger/Cloak_and_Dagger_Smoker_T_Shirt2.html

    http://www.flickr.com/photos/thisisawakeupcall/123498074/page2/

    Don’t tell me this guy shouldn’t be somewhat irritated.

  • “… The image is modified enough to be unrecognizable compared to the original…”

    there is no such thing as you described it. it’s an urban myth.

  • The Jaguar image belongs to Jaguar. The person who took the photo ripped of Jag and then was ripped off himself. Ford recently shut down a group of Mustang owners from making calendars with pics of their own cars because Ford owns the image of the mustang. Stupid I concede, but it happened

  • If the OP took his image and tweaked it the same way as the “designer” did for Gap and started producing t-shirts of that image you could be pretty sure they would act if they found out about it.

    The rights of ownership of a photographic image are a little fuzzy and cover aspects such as releases and permissions which often get overlooked. Notwithstanding this the fact that the OPs image was used beyond the terms of the license approved is a clear breach and Gap need contacting with a view to redress. It would then be down to Jaguar to pursue the OP should they wish.

    As for the “if it’s on the net it’s fair game” argument – that comes up time and time again and is just frankly rubbish. It is merely an opinion and has no weight in law. That is like saying “well speeding is OK as long as you don’t get caught” or taking it further “if you get run over crossing the road you should have expected it because you were where the vehicles drive.” Let’s try living in the grown up world eh? It is wrong, there are laws, end of.

  • The photo does not belong to jaguar, it belongs to the photographer, much as a photo of a person does not belong to that person but the photographer. It can only belong to someone else if the photographer agrees to the transfer or use either before or after taking the photo. Gap have used his photo to create their stuff for financial gain without agreement. Not ok, (or as John says; end of.)

    @maaike. Taking a photo of something makes the photo yours, but obviously not the thing you are photographing. You can take a picture of a painting and that picture be yours. If the end product was almost exactly the same as the painting itself you would run into difficulties, especially if you tried to use it commercially, as it could be considered a copy. With the Jaguar the picture only represents a part of the car from a specific angle and context. you cannot drive the car, it is not a copy of the car, and the photo itself is unique.

  • The quality of the work has no bearing on what is the law. Modifying the image at any percentage makes no difference… a derivative is a derivative and the owner of the photograph is the one who own all rights to how it is used. The GAP’s usage definitely does not fall under fair use as this was lifted obviously for profit (clearly against the CC usage allowed). A bill for the licensing usage should be sent to the GAP (perhaps along with a nicely wored letter from an IP attorney). I would also report this to Jaguar, who most likely would want a chunk of the money the GAP is making.

  • Eric S. Smith

    So it’s an unattributed, commercial, derivative work? It’s like they were trying!

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  • quite frankly this is shit, the person who did the design probably has to come up with 30 designs a week, for low cash, decided to do cars and then used images accordingly to make the pictures,

    gap wouldn’t pay for someone to prance about looking for an E type pic, just use one from the net. its common to do. is it right? maybe not but i regularly google search images and use parts of them in my designs. this is because i can’t fly around the world taking photos.

    suck it up, get on with it,
    if they had taken 2 more minutes out of there day to remove the wire reflection you’d never have known.

  • @graeme – You can still prance around the net looking for a royalty free image, or at least a stock photo to manipulate. A company like Gap can afford to make sure they are within the legal and ethical limitations of utilizing internet imagery. In fact, every designer is. If a designer is so desperate to steal from another artist, that they can’t manage to work their way through the proper channels, they deserve to have legal restitution taken against them. Perhaps you should re-think your own use of internet imagery and join the legion of real designers.

  • @derekrudel no need to stoop to insults, i use images correctly.

    yes the image was used. but its only been used as a source image. there not using image exactly as it is, while this is obv a sloppy live trace, what if they have drawn the image using the photo as a guide. (as you shoudl draw a horizon for want of a better example) is that the same thing? i don’t think it is, you can’t draw a car of the top of your head. you need a guide

    but then it comes down tot the legal part. so if the OP dose get to do something against gap, then surely jaguar can take action against them for using there design to profit in the sale of a photo? seeing as i’m sure the E type and its iconic status means every part of it going is copyrighted in some way.

  • @ Graeme – Jaguar is an icon, I’ll give you that — but so is any city skyline or celebrity. A photograph is a representation of the subject captured by the camera, and by photographing an E-Type the photographer was not forging his their own E-Type in their garage, thus not duplicating the work or impending on any copyright laws.

    As stated, the image was originally posted under a specific license of the Creative Commons Copyright. This license states that it is non-commercial, and protected from derivative works. The intent was to post this image for admiration and inspiration, not to sell. Jaguar wouldn’t have grounds to take legal action against the photographer, not even Gap. However, if the Jaguar logo was used that would be a different story.

    If an image was being used as a reference, a real designer would look at multiple images and either draft their own rendition by hand, or go through the proper channels to acquire the rights to the image. In this case those rights, and this image were unavailable for Gap to utilize to sell sweat-shop produced baby shirts.

  • The use of the image with the licenses it was published under means that Gap or any other “designer” using it for commercial purposes is in breach of copyright and would be liable to make restitution to the original photographer.

    Should Jaguar then choose to pursue the photographer that is their prerogative and is totally independent of the claim the photographer has against Gap.

    A photographer owns their photograph but they do not automatically have the right to use that photograph commercially. (That is why we use release forms etc). Many photographers ignore this however and luckily for them cases brought against photographers are rare. (This is a very complex area involving civil liberties, privacy etc as well as design rights and the laws vary across the World.)

    Sorry Graeme but your points are wrong both legally and ethically. If a designer must trawl the net for source material they are obliged to either use them as inspiration in creating their own image or obtain suitable permissions for derivative works. No debate, no grey areas, simple fact.

    It’s tough working as a designer or artist but that does not give anyone the excuse or right to screw over others making their own way in the artistic world.

  • gap might not even notice its a rip off by their manufacturers in india/bangladesh who have used it as “inspiration”…

  • Did you design the car?

  • Did you read the thread “Anonymous” or do you just like to post one liner crap?

    It is irrelevant whether the poster designed the car or not. This is a rip of the photograph that was published under copyright forbidding the sort of commercial shit that Gap have peddaled.

    Jaguar as owner of the design rights to the car “may” have a case against the photographer if the photographer is “passing off”, profiting or using the image to damage the commercial standing of Jaguar (None of which is there any evidence of here) but that is a totally seperate issue and does not protect Gap at all.

    Gap are in the wrong. The “designer” who ripped the picture is in the wrong. A claim for royalties on design rights should be the next step.

  • just to jump in even though this was a while ago from my last pot, i still stand buy what i said, if the designer spent more time on it, then this wouldn’t have been known in the first place.

    and just o point out. i’ve been to a Gap factory in turkey, its not a sweatshop. its a standard factory. i wish people whoudl stop thinking children make high street chians clothing. its not the 80′s it dosn’t happen anymore and companys strive to give good working envrioments.

  • Pretty sure it’s not the same image.
    There isn’t enough detail on the gap t-shirt to tell.
    I would bet many other images of Jaguars would fit a similar template.

  • i see no wrong done. they edited the image. You took an image of the jaguar. They took an image of your image. whats the difference?

  • Its an average photo of a car whose design doesn’t belong to the photographer. If i make an illustration of Thom Yorke is he going to sue me?.

  • Philosophically: I have to wonder whether a stylized reproduction of a generic product from a supremely generic angle from within a more expansive picture counts as a reproduction of the picture itself, or if it simply a reproduction of what any example of that type of vehicle would look like in that (apparently public) location and position. Also, whether or not it makes a difference that the reproduced portion of image is the primary focus of the image itself, as opposed to a peripheral object.

    Legally: yeh, it’s copied.

    Ethically / Realistically: It doesn’t matter. Ultimately what the op is whining about is that the reproducer saved five minutes of their time at no cost or harm to himself, beside petty sentimentality. And I would say that the petty sentimentality was inflicted on the op by himself, as one’s reactions are their own responsibility and the only harm done exists in the form of his own indignant reaction. I don’t doubt many would claim that the harm done IS the legality of the matter, regardless of any tangible consequence, but if that’s the case then clearly the law lacks the flexibility AND detail to ensure that the spirit of the law isn’t wasted on such a petty non-issue. Of course, others would then respond that regardless of the incompetence of the current law as it stands, the law is what it is and it’s unrealistic to discuss “should be”s rather than “is”s, to which I would respond that it is not unrealistic to wish to improve upon something with the belief that the thing CAN realistically be improved upon, or, should it not be possible to improve upon due to greater circumstances, that then the circumstances themselves can be improved upon to allow for the improvement of the more particular thing in question that drew attention to the need for a runaway cascade of change! Of course, in the modern bureaucratic mire that makes up the “greater circumstances” previously mentioned, the greater circumstances themselves are meticulously designed to protect themselves from improvement in a tautological loop of self-vindication, which is why to accomplish any improvement upon the existing system we must rise up in arms and declare war on that which oppresses practicality and the improvement made possible by critical self-examination! Let us join forces against the irrational paradigms that stifle the societal advancement of the human race out of a misplaced, self-righteous arrogance so that we may forever be justly free to ignore the petty blatherings of such profoundly frivolous douchebags as the op! Let us be free of the base reactions born of bestial psychological impulses run rampant! LET US FINALLY REACH ON HIGH AND IN TRUTH CLAIM THE HERETOFORE UNEARNED “SAPIENS” THAT HAS FOR SO LONG LANGUISHED UNREALIZED IN THE SECOND HALF OF OUR SPECIES’ BINOMIAL LINNAEAN MONIKER!

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  • Its NOT stealing if its referenced. If the actuaal pixels are being used, then yes, stealing

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  • I think that everything said made a bunch of sense. However, what about this? what if you added a little information? I am not suggesting your content isn’t solid, however what if you added something to possibly get a person’s attention? I mean My photo of a Jaguar E-Type from Flickr being used on Gap clothing designs – you thought we wouldn't notice is a little vanilla. You should peek at Yahoo’s home page and watch how they write post titles to get viewers to click. You might add a related video or a related picture or two to get readers interested about everything’ve got to say. In my opinion, it might make your posts a little livelier.

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