Photography and source image copyright questions

[IcyVeins]

I live in California. I have done some digital art in the form of photo manipulation, that I intend to try to make money off of, either by selling prints, or by uploading it to websites where people pay money to download it. However, I have been told that by using source images found on the internet as the basis for my work, I am infringing on the copyrights of whoever originally created the images.

First, how do I know if I am allowed to use an image or not? And to what degree do I have to "rearrange" the image in order for it to be considered my original work? Do I have to modify it enough so that the original source image is no longer discernable as such, or is there some other "litmus test" that must be passed? For example, suippose I cut out 1% of a source image and use it as part of an otherwise original work. Would that be legally acceptable?
Or let's say I used a very generic image such as a football. Would this be acceptable if the image is generic enough that it is impossible to tell exactly who or where I got it from? Basically I'm just looking for some criteria I can use to know if I can use.

Along the same lines, how can anyone even prove I used their image? Even if they produced a similar looking image, in most cases I could argue that I could have taken my own photograph of the same image they did. And in any case, couldn't I just take a photograph of my computer screen, and call that an original image? What are the reules regarding this?

Finally, let's take a worst case scenario and say that I want to use a source image and my finished work would be deemed to violate the creator's copyright. How would I go about requesting permission to use their image to create my own work? Is this something that would be plausible for an inidividual entrepeneur like myself, and are there any guidelines I should be aware of when making such requests? What kind of compensation would I likely have to provide? I might want to use images ranging from Getty all the way to some random photobucket account.

Thanks to all who respond for any advice they can offer.

 

[The Occultist]

Research "derivative work".

 

[FlyingRon]

To make it simpler: No you can't do this without the permission of the original copyright holder. The fact that the picture might be common enough to be harder to identify the original source doesn't make it any less illegal and a lot of photographers know their own work regardless of how generic it appears.

Going back for permission retroactively is problematic. Your best bet is to secure permission first. Either contact the person directly. If you are stealing stuff from photobucket there may be contact information there. In addition somethings may be marked with a license like "creative commons" that specifically authorizes use under certain terms.

 

[quincy]

I agree with The Occulist and FlyingRon that your photo manipulations could potentially be looked at as derivatives of the original works and that seeking permission from the creator of any work is always advised, to avoid all risk of an infringement suit.

However -

Copyright protects the way an idea or a fact is expressed, but not the fact or the idea itself. While making a derivative from an original work is one of the exclusive rights of a copyright holder, it is often difficult to tell whether a work is a derivative of another's work or one's own expression of the same idea.

This is especially the case when the original work's subject is a generic or a common one.

A football is a football and, unless there has been some creative element added to a photograph of a football to make the expression of this football notable, it would be hard to win an infringement action over another's photograph of a football. A court would look at two football photos and eliminate what is seen as a common element in all football photos (ie. the football as a football). What is left after "subtracting" the common elements would be the elements subject to copyright protection (ie. color, placement, angle, etc). See Mannion v Coors Brewing Company, 377 F.Supp. 2d 444 (SDNY 2005).

Another (personal) example:
I recently attended an art fair where several photographers exhibited their work. One particular photo caught my attention because, not only had at least six different photographers taken a photograph that seemed identical to the others, I had taken my own photo a few years ago that looked identical to the ones on display. The photos had all been taken from a common vantage point in Paris and all captured the identical view from that point. There was nothing especially creative about any of the photos that set one apart from the other. We had all taken nice generic "tourist" shots (although now I am thinking of selling mine for $1500 ). At any rate, not one of the photographers could successfully present an infringement action against the others (nor could I sue any of them for infringement of my work). Had one added an unusual element (ie. colorized or zoomed in or included a person in the photo) then it could have set their work apart and a copy of that work could then potentially support an infringement suit. "Independent creation" is a defense to any infringemet suit.

The above is not to say that it is fine and dandy to take a work created by another and copy or manipulate the image to claim as your own. However, copyright protection covers original expressions. There must be at least a minimum level of creativeness and originality in a work. Little or no protection will be afforded those photographic images which can be duplicated easily by anyone with a point-and-shoot.