copyright infringement?

[wolfsong]

It took my daughter and me a long time to begin building our online presence, and I was recently asked to make a portrait of a dog through our online shop. The owner of the dog supplied me with photographs and I made a drawing using them as my references. She claimed to have loved the drawing so much that she wanted me to proceed with the finished piece. I worked hard and long and when I finally sent her a picture of the finished piece, she refused the work and made some rather inexplicably scathing comments about it. Well, hurt feelings aside, I did not ask for any compensation for my time; I just kept the drawing. I have been using this drawing (NOT her photograph, name, or any other identifying information) in my online portfolios and she has asked me to remove it because it violated her copyrights to the photograph that I used to generate the drawing. Now I have received notice from Facebook that my picture has been blocked because of her allegations and I fear more retaliation elsewhere on my internet presence; she has already left defamatory comments on my Facebook page, which I’ve since blocked (but we all know she can find a way to return if she so chooses.) Can you please tell me if she has the right to revoke permission to use her photograph AFTER the work has been created? Don't I own the rights to my own drawing? And what can I do to stop her harassment and make sure this doesn't happen again?What is the name of your state (only U.S. law)?

 

[The Occultist]

Does your user agreement state that all submissions become your property?

 

[FlyingRon]

I suspect you had no agreement with her as Occultist alludes to. The next step is whether the drawing-from-photo could be considered a derivative work. If it could, you are definitely infringing. If it was just that you used it to know what her dog looked like so you could draw a completely original work, then the work is yours alone.

Either way you can file a counterclaim with Facebook that you do indeed own the rights to the photo.

 

[quincy]

In addition to what has already been said and suggested, you could potentially pit a threatened defamation suit against her threatened copyright infringement suit, to see if a peaceful compromise somewhere in between the two threatened suits can be worked out.

 

[wolfsong]

I think perhaps my original discussion was not clear, or else I am missing something myself. Please tell me this: I was commissioned to do this portrait through an online venue. I never met the woman, or her dog. She sent me photographs of her dog so that I might render the portrait accordingly. How else could I make a portrait, never having ever seen the animal??? Wouldn't her permission be assumed if she provided the pictures?

I did not ask that her pictures become my property- I don't want them and I don't think that would be fair to ask of a customer.

And having received permission to use them, how can she revoke that permission AFTER the piece is completed? How does that make any sense? Yes I can see that I would not have the right to sell that picture- although, frankly, that seems unfair as well since I was never compensated for my time. She asked me to proceed with the final piece and I did and then she refused it without any real explanation. Her exact words are that I "made her dog look like an off-brand cartoon character"....well, if that is so, then how can she claim that I "copied" her photograph? Clearly, in her mind, the two do not resemble each other at all. In addition, she is completely ignoring the fact that the final drawing...is the SAME as the original drawing, only with some color added. Obviously she is just trying to harass me, but I do not want to speak to her about it without legal authority as to who owns the intellectual property, i.e. the finished piece of artwork.

Granted I know hardly anything about this subject, which is why I am here asking about it, but I do know that SHE owns the photograph and I was given permission BY HER to use it. What happens after that?

 

[wolfsong]

oh yeah...PLUS she now owns copies of MY drawings! She can make some very nice smaller prints from the digital file I sent for her approval before I would have mailed the original.

 

[FlyingRon]

You haven't answered the real questions and many of your points have no basis in law.

What exactly did you do with these pictures? If you essentially did a sketch that is a direct copy of one of the pictures (essentially just rendering the image that was in the photo), sounds like a derivative work of which she (or whoever took the pictures) have the underlying rights to the image.

If however, you got a couple of pictures of the dog and rendered a picture of that dog that's not derived from the images, the the work is entirely yours.

The fact she gave you the pictures to use is neither HERE nor THERE. Just because she provided them for you to make pictures for her, doesn't give you the right to use work derived from them freely. It would be the same if she bought a picture from you and started feeding it in the Xerox machine.

Sounds like you had a work-for-hire situation that went bad. It goes back to Occ's first comment on just what you agreed to do. Frankly, I'd be asserting that she is infringing your copyright, that you were never paid for the work, and even if you had, it was not work for hire and you retain the rights to the (possibly derivative) work and she was not authorized to make copies.

 

[The Occultist]

I did not ask that her pictures become my property- I don't want them and I don't think that would be fair to ask of a customer.

Making such an assertion in such an agreement is common practice and is done to protect somebody suh as yourself from stupid legal battles like this. It doesn't help you now, but it's time to set up a user agreement (I'm sure you can find a free template online that you can tweak to your specific purposes, or you may wish to pay an attorney to draft one up for you) which includes the language that all submissions become your property. It's not about stealing their photos, it's about making sure you don't get sued for "stealing" their photos.