Advertising and Copyright/Fair Use

[Jerry Skrocki]

A well written article by Carolyn E. Wright was posted in the news feed today "Understanding Fair Use".

Black Star Rising - Understanding Fair Use

A comment posted to the site refers to another blog in which two photos appear. The original photo by Jamie Nelson for Blink Magazine, 2006 depicts a stylized woman on a yellow mat with yellow wig and a yellow hammer in her hand. The second photo shot by a different photographer for Dexim Shoes, 2008 uses the exact pose down to the yellow mat, wig and hammer with red shoes added.

Why Your Images Need Copyrights - Shoot The Blog

This brings both Copyright and Fair Use into question. Is the general feel of an image including pose,props and color theme covered under either protection?

[ChrisPerry]

This is a road that best not be traveled perhaps. It sure appears that this was a clear case of trying to copy the original image - too many similarities and the only diff is the direction the BG runs and the addition of the shoes.

What if I try to emulate O. Winston Link's train images from 50 years ago (there is a guy doing it -for profit). There is also a guy making photos that are copies of Norman Rockwell paintings. These two are just as guilty I would think.

So at what point is it too much of a copy? The hairstyle? The BG? The pose? Do you have to have all three the same to be a copy?

I could hire a painter to copy the Mona Lisa then I could photograph it and sell it - not claiming it to be the original of course - and I'd bet I'd get in legal trouble. I've heard one has to change things...how much needs changed? Could I take a Stephen King book and change the setting, characters and republish and be safe?

[Jerry Skrocki]

According to Carolyn E. Wright's Fair Use article;

"When the unauthorized use directly effects and competes with the copyright owner's business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer - such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field."

I think this would be the largest mitigating factor, since both parities are photographers competing in the advertising market.