derivative work?

[KBooker]

Does the following constitute infringement:

Scenario 1: A digital photo is copied of a young man playing softball [example] from an online source [non-stock photo]; a principle [e.g. the young man hitting the ball] is removed from the photo and digitally altered (e.g., change positions and new material added, etc.); and the image is then turned into a single or multicolored silhouette image.

Scenario 2: two or more digital photos are morphed together and the outcome is converted to a silhouette [with further digital alterations as noted in the first scenario).

Per the modifications, the results are no longer photos, but images, and they are significantly different than the photos (e.g., no background, photo qualities, faces, etc). The new images are essentially silhouettes of action figures. Are these new images considered original, or derivatives? Thank you.

What is the name of your state (only U.S. law)? VA

 

[FlyingRon]

Both of those are copyright infringement. They are derivative works and pictures "found on the internet" (stock or not) does not equate to "public domain."

 

[quincy]

I am not as convinced as FlyingRon appears to be that what you describe would be considered infringement - not that my opinion matters much. What matters would be whether the copyright holders in the original works find your use infringing and whether a court would agree with their assessment.

I suggest you review two cases, both involving an artist named Jeff Koons - Blanch v Koons, 2006, and Rogers v Koons, 1992. Although Koons has been sued more than these two times for copyright infringement, these cases illustrate nicely how a court determines whether a work is infringing or not. One of these copyright infringement suits Koons won (Blanch), and the other he lost (Rogers).

A major court consideration is how similar the "infringing" work is to the copyrighted original. If there is substantial similarity, if a viewer can look at the new work and see its connection to the original, then there is a great likelihood that a court would find the new use infringing on the original work.

With your manipulation of the originals, the works you created could be, as FlyingRon suggests, derivatives. It is also possible that your newly created works could be seen as non-infringing originals. It would take a careful review of the works in question (best done by an IP attorney well-versed in copyright law) to give you a better determination as to where your works may fall.

Even with a careful review and comparison of the original photos to your altered works, however, and an attorney's opinion that your works do not infringe on the copyrighted works, the final determiner would be a court - if the copyright holders believe your works infringe on theirs.

Your best bet is to take your own photos of action figures and go from there.