Copyright Fatality? Derivative work or lawful reference?
AttorneyScott Commentary:
One of the exclusive rights that inures to a copyright holder is the right to create a derivative work from an original copyrighted work, as previously discussed. If another artist creates something that adds on, embellishes, or transforms that original work, she may obtain copyright protection for the work that she added, but she cannot exploit the derivative without the authorization of the copyright holder in the underlying work.
Looking at images for inspiration and then created an original work inspired by that image or images is fair game, however, so long as only the idea is used and the expression is new and the author's own. 'Referencing' an image is somewhat of a closer call, as the legality will be decided by what it was that was used during the 'reference,' whether or not that material is copryightable, and the amount of the taking.
Recall the big AP photographer v. Shepard Fairey 'Obama Hope Poster' rigamarole - Shepard got creamed in that case because it was shown that he basically traced and colorized an original photograph. The result may have been different if he had simply taken the placement of Obama's hands, or the way his head was tilted, and added all new material around that element. Or, maybe not. What say you in regard to the alleged taking below?
***
Dear YTWWN:
Fatal Clothing references photographers images without consent for their t-shirt designs.
Photographs by Dangerously Dolly and Greg Truelove
About:
Fatal Clothing llc.
Owned and operated by Bill Gaylord & Mark Atkins. We are located in Southern California.
Fatal Clothing specializes in Traditional Tattoo Influenced art. Servicing consumers worldwide via internet, retail stores and wholesale distribution. Mark Atkins started his early venture working out of his garage while in high school designing T-Shirts selling to friends and family. As the popularity prospered, it was apparent to Mark, to grow the business he needed help. In late 2008, Bill Gaylord joined forces with Mark to take Fatal to the next level. Today, Fatal Clothing currently sells to hundreds of Retail stores worldwide. Our reputation for providing unique artwork, quality and service has impressed all our clients.
We strive to stay on top.
Fatal Clothing or Fatal Rip-Off?
June 28th, 2012 - 00:06
Theres no denying this is derivative work espevially on the first one. The poses are identicle, the hair is the same, the blindfold, hand placement, some of the tattoos are the same too! The triangle on the neck, flower on the right hand, the chestpiece wing span. All they did was add a background. It’s pretty obvious. Are these the only two?
June 28th, 2012 - 10:05
Pretty obvious derivative… which is a no-go, unfortunately one that some “designers” don’t seem to grasp.
June 29th, 2012 - 08:30
Have the photographers been alerted?
June 29th, 2012 - 21:21
The whole concept, the styling, the pose… everything that makes the pictures stand out, has been stolen from the photos. Clearly derivative.
June 30th, 2012 - 23:42
I don’t think this is actionable in any way. Yeah, the photos were the basis for the illustrations, but they’ve been changed significantly, although the top one is pushing it legally.
July 3rd, 2012 - 09:38
@ Richard: ‘changed significantly’ ??? WTF?
July 12th, 2012 - 14:40
Obvious Rebel 8 ripoff as well
July 13th, 2012 - 03:53
They’re significantly changed, dude. They’re high contrast line drawings with many legally significant alterations. It’s not anything but a pain in the ass, unfortunately. For example, these don’t have a chance of competing with the originals in the marketplace.
July 31st, 2012 - 07:55
“…many legally significant alterations…”
yes, it’s called “tracing”, buddy.
August 8th, 2012 - 06:17
check out rebel 8. mike giant has been drawing similar girls for way longer and fatal comes out and straight rips off of him
August 8th, 2012 - 14:15
Total ripoffs. Both photographers stand to make a nice chunk of change and I hope they persue it.
August 9th, 2012 - 23:20
people keep saying “derivative”. That is not the problem here. the problem is that the shape and size of the face, elbows, hands, everything except the hair and tats and details are the same. it is an obvious tracing. no freehand reference can be that exactly the same.
wow.
what can I do to help the original photographer?
August 9th, 2012 - 23:22
You people don’t seem to understand.
USING THE SAME POSE, SAME STYLE, EVEN SAME OUTFIT IS ALLOWED IN ART.
what is NOT allowed is to TRACE THE BODY. ignoring the hair, EVERY PART OF THEIR BODY EXACTLY MATCHED THE PHOTO. that is the problem.
artists are ALLOWED to “copy” styles, poses, ect. you are getting mad about the wrong issue.
August 13th, 2012 - 07:28
Pretty obvious derivative… he is not even using the shitty tattoos of the photo girls
August 14th, 2012 - 21:12
Total tracing.
August 29th, 2012 - 07:10
Is there any question tat this is 100% derivative?
They lifted the photo and lifted Mike Giant’s style to make a completely lame rip.
(I know Giant didn’t pull his style out of thin air, so save me the references)
But technically I believe this would fall under Fair Use in US law- a la the Obama “Hope” poster.
December 13th, 2012 - 01:05
who cares. both photography and art work copy suck
December 19th, 2012 - 15:30
You guys are all fools if you think this is copyright infringement.
If you see a picture of a car and then draw a car, and sell it on a tshirt, does that mean you are stealing?
Using a photo for reference is not infringement – especially using the method this artist did, it is a unique form in itself.
I am not an artist, but know right from wrong.
Claiming he took the photo or selling the photo is stealing, but looking at a body form and tracing it in illustrator and re-creating it into something of your own – is not.
Fuck you talent-less haters.