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At What point, it is breaching the copyright?

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rkang30

New member
Hi,

If I create an illustration image based on a photo I found online, would it breach the copyright of the photo? What if I don't copy exactly. Such as change the original color, add different object(s), or remove some of the object(s) on my illustration.

Thanks,
Ryan
 


quincy

Senior Member
Hi,

If I create an illustration image based on a photo I found online, would it breach the copyright of the photo? What if I don't copy exactly. Such as change the original color, add different object(s), or remove some of the object(s) on my illustration.

Thanks,
Ryan
What is the name of your state, Ryan?
 

quincy

Senior Member
What you are proposing to create probably would be considered a derivative of the original, and creating derivatives is an exclusive right of the copyright holder. You would need permission from the artist-photographer to use his work.

In order to use the copyrighted work of another as the basis for your own work without authorization from the copyright holder and without infringing, you would have to add original expression and new meaning to make your work transformative.

I have often used Jeffrey Koons as an example on this forum. Koons is an "appropriation" artist. His artistic creations are often based on the creative works of others. And he has been sued for copyright infringement many times as a result.

The courts in the Koons' cases have ruled in favor of the plaintiffs, judging Koons' work to be a derivative of the original, and the courts have ruled in favor of Koons, judging Koons' work to be transformative. Koons lost another infringement case in France late last year.

Reading through the various courts' analyses is an education on the difference between derivative works and transformative works.

Here to start is a link to Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992): https://h2o.law.harvard.edu/cases/5190

In Rogers, the Court found Koons infringed on Rogers' photo copyright.

In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), the Court found Koons' work, that used Blanch's photograph, transformative.

 
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rkang30

New member
Hi quincy,

Thanks for your information. You mentioned 'transformative'. I am wondering what degree of modifications would acknowledge it as 'transformative'.

For example, if I create an illustration from a photo in which a woman is sitting at a cafe, in order to become 'transformative', the pose of the woman in the picture has to be changed as well as the clothes colors? Or the pose is OK to copy?

Thanks,
Ryan
 

quincy

Senior Member
Hi quincy,

Thanks for your information. You mentioned 'transformative'. I am wondering what degree of modifications would acknowledge it as 'transformative'.

For example, if I create an illustration from a photo in which a woman is sitting at a cafe, in order to become 'transformative', the pose of the woman in the picture has to be changed as well as the clothes colors? Or the pose is OK to copy?

Thanks,
Ryan
There are several factors a court looks at when deciding whether a new work is a derivative of the original (which would require permission from the copyright holder) or transformative (which would be viewed as a fair use of copyrighted material).

If you read through the cases I provided above, you will see that making a transformative work is not as easy as changing a photograph's colors or poses.

You will need to sit down with an IP professional in your area for a side-by-side comparison of the original work and the work you created based on the original work - or you could seek permission from the artist/photographer (or holder of the copyrights) to use the original photograph for your work. Acquiring a license from the copyright holder to use the original work is bound to be far cheaper than a copyright infringement lawsuit (damage awards of which are often in the hundreds of thousands of dollars).

Good luck.
 

quincy

Senior Member
I like many of Koons' works of art - especially his "Balloon Dog" pieces - but this particular work is not one of my favorites. :)
 

PayrollHRGuy

Senior Member
Excuse me because I didn't read the case. But I have to ask, does that mean that Blanch is the only person that make art of women's sandaled feet?
 

quincy

Senior Member
I zoomed in on the image and see now that the second pair of feet from the left are from the Blanch art.
The collage by Koons in this case was found to be a transformative work. Koons added creative value and new meaning to the original advertising art that was created by Blanch.
 
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