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Once again, another DeviantArt member has told me that he/she has used my work for his/her own purpose. Because I am a professional photographer, in most circumstances it is not practical for me to give away my work.

Before you use my work, please learn what protection a copyright provides.

United States copyright laws allow for “fair use” of a copyrighted work. However, “fair use” is much narrower than most people think (hint: it doesn’t mean “It’s fair usage for me to use someone else’s work however I choose if I claim it’s art.”)

Fair use is also very dynamic, and the proliferation of digital media has greatly affected the legal interpretation of fair use. However, there are sufficient statutes and legal precedents for us to know, in most instances, where the boundary is between “fair use” and "copyright infringement.”

Fair use allows for copyrighted work to be reproduced without permission from the copyright owner in these instances:

                    • Criticism
                    • Comment
                    • News reporting
                    • Teaching (including multiple copies for classroom use)
                    • Scholarship
                    • Research

(This list was extracted from the Wikipedia article “fair use,” which provides a clear and useful explanation of the topic and how it works in the United States.)

Please note that “derivative works” isn’t included as a fair use. The owner of the copyright has the exclusive right to make derivative works (any type of new version of the original image, such as a drawing, painting, or statue).

So if you need photos for your creative pursuit, please take your own, don’t take mine without permission.
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:iconxenashwood:
XenAshwood Featured By Owner Jul 29, 2014  Hobbyist General Artist
How do photedits figure in?
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:icon010misa010:
010Misa010 Featured By Owner Oct 31, 2011  Professional General Artist
That is a lovely surmise of the status of copyright law, and the difference between fair use and copyright infringement. The case of the UK is somewhat similar to the US, although I am still rather unsure of how to enforce copyright, if for example, the noted infringement occurs in another state. But either way, I sincerely endorse your statement of copyright above, even if my own work isn't worthy to be afforded copyright protection, your's is however.
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:iconabigtreehugger:
Abigtreehugger Featured By Owner Oct 21, 2011  Professional Traditional Artist
The whole discussion was very interesting to read in sequence. My understanding of copyright law comes form my academic background so it is fair to say it comes primarily under the banner of intellectual property or rights. My understanding of Intellectual property rights is that it applies to any original work by an individual or group.

I suppose the thing I have taken from this discussion is it is not solely about the use of, or creation of derivative works from others, works, it is the total lack of respect. I suppose summed up by~

'~sasmylie Aug 27, 2011
honestly, I'm gonna do whatever I want, take whatever I want, and make whatever I want out of it...u want to horde yr work for yrself, keep it to yrself. this is my world, too, and if u feel like u can grace my eyes with your work, be prepared to get yr work copied and clipped.

get the government involved if u can, but for real, it's survival of the fittest. that's real talk

you'll never catch us!'

and~

'!gm2 Jul 13, 2009
I think its a little like the software or music piracy thing which most people also don't have a conscience about.

--
ModelMayhem
bemodel
OneModelPlace'

gm2 is quite right, but rather than, 'I think its a little like', it should have been, 'It is the same as'.
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:iconkhalagata:
Khalagata Featured By Owner Oct 4, 2011
All valid points and you've covered the issue well. It gets even more tangled though now that the Internet is involved. I had a very interesting conversation with a paralegal once that worked for a copyright infringement attorney. She explained it the way he explained it to her.

In the early days Fair Use was pretty clear and self-explanatory. Making copies for a classroom, for example, would never be questioned. Unfortunately too many of these methods have been used to get around copyrights and now if someone really presses it you can be brought to court in those cases. The key is copying something in it's entirety when it comes to a case like that. Copying a section like a page of homework would be fair use but copying an entire book to avoid buying books is not, unless you have express permission.

To answer Maniac-X's point, the definition of what constitutes enough additional material is so vague that it is left up to the court to decide. That means the only way to be absolutely safe is if your work has been changed so much it can't be recognized as being derived from the original piece. Less than that and you never know if you will be safe, the court may decide anything.

The same is true for including pictures in research documents, etc. you must document where they came from, but if it is going to be published you better CYA and get permission to include it or leave it out. More than 95% of the time if you are going to make no profit from it there is no problem but there is the occasional exception. The House of Mouse is famous for that, they once sued a day care center for decorating their walls with cartoon characters owned by Disney. Hannah Barberra heard about it and came in to repaint the whole place for free, great publicity for them.

The tricky part is the Internet and here is where it gets confusing. None of these laws were written with the Internet in mind. You have the same protection, theoretically, for your photos here that you would have if you published them. If anyone copied them to their website they are in violation of copyright law and equally punishable under that law. There is one exception to that which would get the case thrown out of court, but it is rare and relies on something almost nobody would think of so I will NOT REVEAL WHAT IT IS. No sense providing the potential thieves with any useful information even though it would not work in your case or the case of any original artist.
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:iconmaniac-x:
Maniac-X Featured By Owner Oct 1, 2011
Actually, derivative works can be protected by copyright law, and there is a good deal of legal precedent for it.

According to the US Copyright Office:
To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new work must be original and copyrightable in itself.


Fair use is also available as a complete defense for an unauthorized derivative work. It has legal precedent, even: In Campbell v. Acruff-Rose Music, Inc, the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense. The Supreme Court pointed to transformativeness as a major clue to application of the fair use defense to derivative works.

That's not the only precedent, either, but it effectively illustrates my point: If a derivative work is different enough from the original, it is considered fair use by the supreme court, and covered by the Copyright Act as defined under Title 17 ch. 1 ( 103, and 106A) of the United States Code.

~

I will grant you that probably many such "derivative works" that you might find here on dA are not original enough to be protected by copyright law. However, it is dishonest to claim that no derivative work is protected by US copyright law when that simply is not the case.
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:iconcarvenaked:
carvenaked Featured By Owner Oct 20, 2011
Thank you for pointing that out! My impression is that fair use is 'broader' not narrower.. and those who fight it out define the meaning of words in the definitions. It is quite natural for creators to wish for a narrower interpretation and for derivative users to wish for the broader. People who say that part is 'clear' are wrong.
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:iconzoomer666:
Zoomer666 Featured By Owner Jun 4, 2011
Simple question, would you consider someone using your work as a screen saver a breach and why? if they had no intention of showing or profiting from it. ( and no I'm not )
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jun 4, 2011
Yes, since it is not an "excepted use" specifically allowed, it would violate U.S. copyright law, and I would not agree to it.

Actually there is an intention of showing . . . it is a screensaver, right, visible to all who look at the computer in screensaver mode.

While there may be no intention to profit from it, there is clearly value received from it's use as a screensaver. Think of it like this . . . if I burn 100 copies of the latest Lady Gaga album, and give them all away, it is a copyright violation, right?
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:iconmelchiahalex:
MelchiahAlex Featured By Owner Jul 22, 2011
This issue comes up constantly, and I applaud your efforts to educate the masses on what "fair use" is defined as.

There is one aspect of your comment above though that is a fallacy.

You state:

"Actually there is an intention of showing . . . it is a screensaver, right, visible to all who look at the computer in screensaver mode.

While there may be no intention to profit from it, there is clearly value received from it's use as a screensaver. Think of it like this . . . if I burn 100 copies of the latest Lady Gaga album, and give them all away, it is a copyright violation, right?"


There is a critical difference here, insofar as the letter of the law is concerned.

In your hypothetical scenario the person copying the Gaga album is doing so with explicit intent to disseminate to the public, whereas using an image in a screensaver is not since it's displayed only in your private home (I'm not saying it's therefore not a fair use violation to take the artwork and use it as your screensaver. I'm only differentiating between private use and public dissemination).

That's relevant in this case due to the definition of "Public Display" regarding copyrighted works. The litmus of "Public Display" while in-home is only met if you used the images(s) with the direct intent of gathering a group of people at your home to view it (The same concept is seen in that it's legal to copy every DVD you buy. Copyright allows for the production of (1) copy of the DVD for backup purposes, so long as the copy is not given to anyone and only used in the event the original your purchased is damaged/lost to you. Most people are completely unaware of this, see ruling in casefile: 321 Studios v. Metro Goldwyn Mayer Studios, Inc. et al.)

Even in that case the lawyers still argue over what that limit is since if it's a matter of absolute strict interpretation then it'd be illegal to even invite a few friends over to watch that DVD you just rented. Thankfully it isn't though, and so far the difference between private use and public display has remained relatively clear.

At any rate, thanks again for highlighting fair use and I hope my addition to the discussion proved useful in some way.

PS. If you actually read all of that I'm honored, :)
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jul 23, 2011
I'm a bit lost as to what your point is here . . .

When you state, ". . . using an image in a screensaver is not since it's displayed only in your private home . . . " you present as fact the belief that screensavers are only displayed in private homes, which isn't true. How many sfreensavers do we all see in public spaces like offices, shops, stores, etc?
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:iconmelchiahalex:
MelchiahAlex Featured By Owner Jul 23, 2011
Yes, you are correct. I do apologize for the ambiguity of that part of my reply.

When I mentioned the use of a screensaver it was in direct reference to the question asked of you by Zoomer666. The way his question was positioned it seemed as if he was referring to making his own screensaver for the computer in his house. After reading through his question a second time I see he never said that and I was acting on an assumption that it'd be for private use.

Given that he never said what the screensaver was for I guess we can't take the issue of public display vs. private off the table insofar as his question is concerned.

As for fact or belief regarding where screensavers are displayed, yes of course they're everywhere, I didn't state anything to the contrary. It's been my experience thought that most people poking around online looking for images to add to a screensaver are doing it for own use on their computer.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jul 23, 2011
Thanks for the follow-up. I appreciate the rigorous thinking you use.

It surprises me that people often decide there are any number of exceptions besides "fair use" that empower them to appropriate intellectual property.
Reply
:iconmelchiahalex:
MelchiahAlex Featured By Owner Jul 24, 2011
My pleasure, :)

Thank you for the compliment regarding my thinking before I speak. At the risk of using a conceit, I wish others did as well. There would be far more useful discourse, and we'd all be the better for it, if they did. I appreciate just as much the fact that you too seem to think before you speak and are adult about the issues, particularly one so potentially contentious as this one.

As for people and their ability to empower themselves to steal I understand completely. I have a sibling serving a prison term (A long one) as consequence of her misappropriating someone else's identity. While it's not art theft, the concepts are the same.

I learned from watching her over the years that when someone has a mind to steal something they'll invent whatever "excuse" they need in order to justify their behaviors. She learned the hard way that there is no valid justification. C'est la vie, she made her choices and we all have to pay the piper at some point.
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:iconcarrionart:
CarrionArt Featured By Owner Apr 10, 2011  Professional Traditional Artist
Read your post, and it got me thinking.

I often use photographic reference for my work, and as you can imagine, the internet is a great resource for this. Most of the time I wind up using multiple images to reference for a single character in a drawing or painting, so "fair use" is not an issue; I'm just checking the anatomy and angles on a leg, or the lighting on a curve of the back, as opposed to swiping a whole piece.

However, I will on occasion just do a verbatim drawing of a photograph, whether it's for practice, or because I'm trying to work out a certain effect, or because it just happens to be a beautiful piece and I'd love to reproduce it. I've always been very careful in the past not to give the impression that it was my own original work, to credit the photographer and model when possible (which hasn't always been the case, as I have often used images from those spam emails that go to my junk account) and never to offer those items for sale or trade in any capacity. I thought that this got me off the hook, in terms of copyright infringement. At the same time, I have been MERCILESS in chasing down people on dA that steal art from others and peddle it as their own.

Color me hypocritical, I guess. I did a little research after reading your post, and I'm not claiming to be an expert on the matter but I certainly have enough doubt about what I was doing that I've pulled all of the deviations I had, that were based on work by other artists, whose express permission I hadn't received beforehand. I wanted to say thanks for bringing this up in such a thoughtful manner, as it may have saved me a great deal of heartache down the road.

Oh, and great gallery, by the way.
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:icongreylynx:
GreyLynx Featured By Owner Apr 9, 2011  Student Photographer
I was surprised when I saw that you call yourself a professional.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Apr 9, 2011
What exactly do you think a professional is?
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:icongreylynx:
GreyLynx Featured By Owner Apr 9, 2011  Student Photographer
I think one criteria would be that you make a living (or at least a substantial income) purely on your photography. And based on your overly graphic, simplistic, snap-shot nudes, I would be absolutely shocked if you did make a living off of it.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Apr 9, 2011
LOL, I actually do make a substantial portion of my income from photography. Nudes are very popular with collectors, much more so than photos of bunnies and pumpkins. I've been at it for a few years now, and have a fairly large archive of work to access.

Before you decide how to characterize my work, I would ask that you look at a range of my work here on DA. At this moment, I have exactly 1,300 images displayed, so you might not have time or interest to look at them all. But it shouldn't take long to dissuade you from the belief that all my work is "overly graphic, simplistic, snap-shot nudes."

I read your blog about making/using lightboxes, and I appreciate the committment you've made to pursuing better methods for creating the images you have in mind. You are absolutely correct that figuring out how to use light is absolutely essential for photography. Please keep working and thinking about photography; we need more dedicated photographers creating beautiful images.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jan 16, 2011
LOL, nope, in this instance, you're safe.

My opine (based on experience/US copyright law & traditions): copyright law law isn't intended to prevent others from looking at copyrighted material, nor to prevent them from being inspired by it. Copyright is designed to prevent the unauthorized use of intellectual property. For the creator of that intellectual property, there are two main benefits:

1) No one can profit from your work without your authorization
2) No one can use your work without your authorization for any purpose other than those identified, which are criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, and research.

Strictly according to US law, printing an image display on a Web page, even for personal use, is not allowed. As a practical matter, I am willing to tolerate this activity (especially when it inspires great poetry). I am much less tolerant of most other violations (LOL, ask any of the hundreds of "image-borrowers" that have tried to misappropriate my work).

Luckily, since 1998, there's an easy process, the Digital Millennium Copyright Act Takedown Request, that allows a copyright owner to have unauthorized content removed from the Web. I also leverage technology to find my work that has been misappropriated on the Internet.

Thank you for proactively providing credit. If I may ask a favor, would you use my full name, Jean Luc LaPointe (there are at least 43 other Jean Luc's here on dA alone ; )
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:iconcfpoet:
cfpoet Featured By Owner Jan 16, 2011
Wow, perfect timing. I'd like you to opine on this:

I'm a poet, and a lot of work inspires me to write. Now, I have the intention to 'ask always,' but imagine the following.

1. I have a template that looks like writing paper, with one of your 'pictures' paper-clipped to the corner. To show the muse.

2. in the writing area of the template, I write the poem. Are you going to kill me? Even though the the title says:

Honey Bun's
by CF Poet
Muse: Fixed-Point Attractor Nbr 239 by JeanLuc44
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:iconcluttermonkey:
cluttermonkey Featured By Owner Jun 8, 2010
When you wish to invoke copy right on your images you shouldn't post those images to a site that is generally used to display and share art. I respect artists rights to their own works. However in the case of derivative work every artist is a derivativest. If from nothing else, but their own imagination. However even that is derivative work from every thing seen heard felt tasted that makes up that imagination. If some one goes though the effort to draw a photo or paint it or even manipulate it in some fashion not foreseen by the "original" artist. Don't they also have a right to their art. If you could have done it you would be a drawer, painter, sculptor, instead of a photographer. Doesn't one of the things that one photographer does is try and emulate some other photographers style. If not why study previous photographers. None of you are original in the true since of the word. So while I respect your right to your work and because of that I fav what I like to let you know and then collect what I think is exceptional to further my own artistic expressions. That makes every thing I have done as an artist both drawn and photographed a derivative work of someone other persons work. Yet I think I have the right to copy right status on it as it was produced by my efforts regardless of its inspiration. On a personal note Jimmywires is the worst kind of community member as he misses entirely the spirit of a place for artists by artists such as DA. If he is only willing to show crap he can take it all down as it doesn't enrich the community in any way. gm2 -- a note to this photographer as the photographer of the model are you note making a derivative work of the model? So why should they intern not make a derivative work of your work of them since how you see them isn't how they see themselves. If you truly had a "conscience about" this subject you would throw away your camera and scope out your eyes with a rusty spoon, derivative work is all the brain is capable of and the fact that you then processes it with a camera doesn't make you nay better than anyone else doing derivative work.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jun 12, 2010
You clearly don't understand how copyright works in the United States. It's not necessary to invoke copyright; every photograph I take is automatically protected by copyright.

Suggesting that I not use DA to display my photographs is rather like suggesting I not keep my car in a garage because someone might steal it from the garage. If you check DA’s policies, you will learn that they do not advocate taking other people’s work without permission; they abide by standard American copyright practices.

Above, you used alot of words . . . I'm sure you thought you were communicating clearly, but I got somewhat lost in the "stream-of-consciousness" style. I also am not a huge fan of bad grammar, incomplete thoughts and sentences, and poor logic.

I think you have tried to redefine "fair use," but it has already been well-defined by the American legal system. Please learn that definition . . . it will save you alot of wasted effort.

You also seem to posit that photography isn’t fine art like drawing, painting, or sculture. You are a bit late to that discussion; not even the most tradition-bound academic still tries to prove that claim, not since the 1950s/1960s/1970s/1980s (pick the decade you like best).

What evidence can you offer to support your statement “Doesn't one of the things that one photographer does is try and emulate some other photographers style.”? I think a defensible statement might be something like “Some photographers try to emulate other photographers’ styles, while other photographers work to find or invent their own style. There are also photographers that choose to work without the restrictions imposed by style.”

You claim that no photographer is “original in the true since of the word” (your words). I’m gonna guess you meant “in the true sense of the word.” Is your claim, then, that you have the only correct understanding of the word “original”?

While I appreciate your bravado in claiming that the entire community of photographers lacks originality, I gotta ask . . . where’s the proof?

You said “If some one goes though the effort to draw a photo or paint it or even manipulate it in some fashion not foreseen by the "original" artist. Don't they also have a right to their art.” Once again, I’ll respond to what you probably meant rather than what you actually said. This is the kind of fuzzy-logic that has already been addressed by current copyright law. Once again, if you invest the time to learn about copyright, you would know the answer to your disingenuous question.

Please take your battle with Jimmywires somewhere else . . . I’m pretty sure he’s not going to see your comments here.

Cluttermonkey, please tell us what your goals are here on DA. When I look at your profile, I see a collection of photographs that seem to be family snapshots. Do you take any other photos, or work in any other media? I would like to see some of your work.
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:iconmelchiahalex:
MelchiahAlex Featured By Owner Jul 22, 2011
You are exactly correct in that your work is copyright to you the moment you create it in any "tangible form that is perceptible either directly or with the aid of a machine or device. (As quoted from the US Copyright FAQ).

For future reference to your watchers, art thieves, the generally curious, you might want to point them to this link: [link]

It might help clear up some of their confusion, and save you from having to repeat yourself. :)
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:iconnyckelpiga:
Nyckelpiga Featured By Owner Jun 8, 2010
I never thought about this fair use issue. So it is perfectly OK to make up a website or print media with all of your images and images of others with a comment like 'Nice image I like' or similar? I think it would also be needed to note your name and say that these images are yours and link back to you or similar, but still it would be possible to get a lot of website visitors this way? This is also what bloggers are doing usually, and I never was sure if it is OK what they are doing.
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:iconjimmywires:
Jimmywires Featured By Owner Mar 19, 2010
Ive pulled all my photos off except for the shitty pics i took when i first started. Ive been doing a reverse search on lots of pics here on the site, and the stealing is rampant and DA doesn't do shit about it. DA knows who they are cause i report them. they still post pics.
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:iconpencilenvy:
pencilenvy Featured By Owner Jul 23, 2009  Student Traditional Artist
It is a very real problem despite what some "children" think - that the world is theirs for the taking - and EVERYTHING should be FREE!

On the other hand, maybe a "professional" should not be posting images on the INTERNET with no actual control possible over what people do with said images?!
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jul 23, 2009
Nope, the internet is a great resource, especially for professionals (or is it "pofessional").

Both DA and copyright law provide some protection. At the end of the day, anything can be stolen/taken/misused. The most protected images are the ones I never post or show anywhere (but they're not doing a lot of good, then).
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:iconchandlerjanse:
ChandlerJanse Featured By Owner Jul 12, 2009   Interface Designer
Great explaination. Although i do see some very AMAZING photos that have potential being editted. Then you just have to say well its the art they make. They are not resourcers. So well i agree, but as needing stock images for my work i see so much potential in many, many images that people are not willing to allow other people to edit. But we know what images we are allowed but again great explanation.
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:icongm2:
gm2 Featured By Owner Jul 12, 2009   Photographer
Great explanation! I'm not particularly bothered by derivations so long as my part in it is clearly credited, but it should be understood as an asked for privilege and I have to admit to getting a bit irked even when a model edits one of my pictures without permission.
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:iconjeanluc44:
JeanLuc44 Featured By Owner Jul 12, 2009
Yep, I don't wanna seem grim, but I do want to get the message out that "just because you can doesn't mean you should (borrow someone else's work)."

I typically offer other artists a "derivative usage" license at no cost, and sometimes that resolves it . . . but I've also been told things like:

"Why are you making a big deal out of it"
"I'm an artist, and I can't be bothered with legal details"
"I'm just trying to honor your work"

and my all-time favorite

"Nobody else has ever said anything to me before."
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:icongm2:
gm2 Featured By Owner Jul 12, 2009   Photographer
I think its a little like the software or music piracy thing which most people also don't have a conscience about.
Reply
:iconsasmylie:
sasmylie Featured By Owner Aug 26, 2011
honestly, I'm gonna do whatever I want, take whatever I want, and make whatever I want out of it...u want to horde yr work for yrself, keep it to yrself. this is my world, too, and if u feel like u can grace my eyes with your work, be prepared to get yr work copied and clipped.

get the government involved if u can, but for real, it's survival of the fittest. that's real talk

you'll never catch us!
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