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Gary Crabbe Confronts Artist Who Copied His Photograph

March 30, 2012 Legal 3 Comments

Written by: Charlie Borland

Editors Note: The following is reposted with permission from Gary Crabbe’s Enlightened Photo blog.

On top of all the other stuff that’s been keeping me busy lately, guess what I found? While re-writing a section of my current book project, I wanted to make reference to artists like Albert Bierstadt who were known for their paintings of Yosemite Valley. In particular, I was looking for something related to El Capitan. I went to Google Images and searched for “El Capitan Artwork.” A little ways down the page, an image suddenly caught my eye in a very familiar fashion. It was a painting of a bird flying past El Capitan. My immediate thought was, “Hey, that’s my photo in your painting!”

Clicking on the image took me to a page on the Fine Art America web site where the artist was apparently selling copies of ‘his’ painting. But the problem is, it isn’t just his painting he’s selling. He’s selling a work which was created directly from my photo. In the copyright and Intellectual Property circles, that’s known as a Derivative Use. Technically, that means he needs my permission if he wants to sell the original or copies of the original. That permission is granted through a Derivative Use License, which like any other license, provides an allowance to use an image in a certain manner, in exchange for a fee or some other form of compensation.

The Problem

I wasn’t in a great mood when I found this; lots of other stuff was going on at the moment, and this was something I really didn’t have time to deal with this. Yet it needed to be dealt with. Thus began the time investment needed to rectify the situation; who was this person, how can I contact them, are they selling this anywhere else? These kind of things happen often, and my goal is to resolve the problem quickly and easily.

crabbe derivative Gary Crabbe Confronts Artist Who Copied His PhotographI posted a copy of the above comparison image on Facebook and G+, where I received many supportive comments, along with a few which revealed some common misperceptions about copyright and derivative uses. The most pervasive of these is the idea that if it’s not an *exact* copy, if someone changed or added something, by perhaps as little as some arbitrary amount (10%) that they’re in the clear. They think the ‘copy’ now becomes their own, and they can do what they want with it. This simply isn’t true. This idea of changing something to make it your own touches base on the concept of creating something new based on something that already exists. According to the American Society of Media Photographers (ASMP) web site:

In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.

Another considerations where permission is needed include the nature of the new work, the amount of the original work copied, and if it’s being used or sold commercially. There are also Fair Use factors which don’t require an original creator’s permission before using an image. These include whether an image is of notable newsworthiness, being used for commentary or criticism, parody, or research or educational uses. But even all of these are still considered somewhat gray areas, as each is judged on a case by case basis.

The Artist

In this case, I emailed the artist at every possible contact point I could find, and asked him to immediately stop selling copies of his painting since it constituted an unauthorized derivative use. I’ve licensed images for derivative uses before, and generally it can be done as a one time fee, or like poster and book sales, it can be done as a royalty based on sales arrangement, often with the original artist getting an advance on royalties. Typical royalty rates can be anywhere between 5 and 25%.

Within the week after making contact attempts, I was prepared to issue a DMCA notice. Fortunately, I heard back from the artist, who had over 1,500 pieces of art for sale on the web site, wrote back with an apology. It turns out he admitted copying the image from when it appeared in the Smithsonian Magazine. In fact, I had offered him the chance to purchase a retroactive license for a very reasonable fee if he wanted to keep selling it, which he apparently declined. He removed all the sales info, left the image in place with a credit / description which read:

Gary Crabbe’s photo was featured in the July 2008 Smithsonian.
As a beginning artist this watercolor is a loose representation.
Painting is for demonstration purposes only and is not for sale.
See Gary Crabbe’s beautiful photography at Enlightphoto:

http://enlightphoto.com

I’m good with that. It’s nice to know that people like your work. It’s often said that “Imitation is the best form of flattery.” That may be true, but if you want to sell work that’s based on someone else’s art, I’ve revised that statement to read, “”Imitation accompanied by money is the best form of flattery.”

Check out my special page for more information and links about legal and copyright issues

Have you had similar experiences and if so how did you handle them? Please leave a comment.

Related Posts: Removing Photographers Name is Violation of DMCA, I Copied a David Muench Picture and It Never Sold

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Currently there are "3 comments" on this Article:

  1. Hi Gary; long time no ‘see’

    I’ve had a similar situation, except the offense against me was a lot more blatant. Someone had used my actual photo on the cover of a poetry book., no credit, no attempt to contact me for permission, and my CR mark removed…

    After consulting with an attorney we decided not to pursue because apparently the book hadn’t sold hardly any copies (it seems the market for poetry is even smaller than for photography) and the author agreed to withdraw from circulation and not use my image in any new books. Like in your case, they turned down an offer to purchase a retro license… can’t draw blood from a turnip I guess

    At least we have a way to track violations via Tineye and Google images but…that’s a time-intensive (= expensive) exercise

  2. Just wondering how the law works for photographers. If I were to see a photo by Ansel Adams and went to that location and attempted to duplicate that image could the resulting photograph be sold or would it be in violation of the law? I don’t travel so that isn’t going to happen, at least as far as I’m concerned. Just wondering. I do a lot of nature landscape photography and am inspired by the image so I go out into my woods and shoot a similar photograph. Am I in violation?

  3. admin says:

    William- I am no lawyer, but have been in it long enough to make educated guesses. Photographers visit locations shot by others every day and they are safe because no matter how hard you try you cant get the exact same image because something will be different. Although I dont know the legal language to recite here, in Gary’s case there was a willful attempt to copy his image and profit from it. Gary’s image for the most part could not be duplicated by another photographer unless that bird makes the same migration through the trees every day for others to capture. So that is not a very legal definition but it how best I can explain it. Charlie

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