Advice re commercial businesses using pics without permission

[blackadder]

I took some photos of a restaurant a while back, the restaurant shut down and reallocated to town centre. I've just revisited their website to find what looks like my photo. They ain't even credited it to my own site, what should I do and what would you do. First, can you check and see if you agree that the pic is the same.


My pic

Their logo

http://www .tangojoes.com/i/tangjoes2.jpg

 

[Firky]

These are the people behind the theft:

http://www.adxmedia.net/web_design_lancashire.shtml

I'd take them to the cleaners myself. Laptop knows about this kind of thing.

 

[editor]

If you're sure it's your photo (it sure looks that way), tell them to remove it immediately or agree to pay for usage fees.

 

[Stanley Edwards]

Pics of other peoples art again.

A million and one people could have taken the photo.


Someone designed that scene. Doesn't matter how bad it is. Someone else still had the vision.

 

[cybertect]

Stanley, I'm afraid this is getting a bit old.

Yes, quite probably a million other people could have taken that photo if they'd wanted to.

The point is that it appears the guys that own the restaurant could have done exactly that and they didn't bother to, they lifted blackadder's one instead and didn't even extend him the courtesy of asking him first. If it was that easy, why didn't they take a picture of their own?

Dare I ask how different it is to one of your photos? It doesn't matter how banal the architecture is...

 

[Stanley Edwards]

Stanley, I'm afraid this is getting a bit old...

Dare I ask how different it is to one of your photos? It doesn't matter how banal the architecture is...

Erm...




I used Ilford Delta and a 5 stop red filter at f16 with a heavy polariser to completely change the reality of the situation by editing the light. By doing so I hope I made a different point. Or, summat.

The shot above in question is very simply a recording of someone elses vision. As is most graffiti stuff.

 

[cybertect]

I wasn't having a pop at your photo, BTW, it just provided a convenient yardstick to measure with...

But then your criticism isn't really about the issue of taking a picture of something that someone else has created, is it? The problem is perhaps that it's a banal image (with apologies to blackadder).

Or is it specifically relating to banal images of other people's art?

Hypothesis of Stanley's truth table for determining whether an image is worthy of copyright:

                       banal picture  artful picture


Someone else's art  |     False          True
not-art             |     ?              True

I'm genuinely curious, because I take quite a lot of pictures of architecture, cars and other man-made subjects where the selection of my viewpoint is perhaps the major creative contribution I make (though I'll probably also be thinking about depth of field and a bunch of technical considerations, some of which I may hand off to my camera).

The law's pretty clear, the photographer owns the copyright and moral rights of his image, even if it is derivative of another work and without much artistic merit in its own right.

...and what happens with banal images of not-art?

 

[Stanley Edwards]

I wasn't having a pop at your photo, BTW, it just provided a convenient yardstick to measure with...

...and what happens with banal images of not-art?

If there is obviously some creative or, technical input that demonstrates a personal interpretation then that is worthy of copyright IMO (recognising the ambiguous legalities and keeping them out of this thread). What really pisses me off is the number of people with cheap digital cameras trying to claim their photographs are worthy of a professional fee.

I see hundreds of tourists here taking the same picture from the same spot without giving the scene any considered thought. Off the bus. Camera out at arms length. Click. Back to the bus. The all shoot from the most convenient spot.

The there are the fucking idiots who photograph me painting The Alhambra with The Alhambra in the background. These people usually have the biggest lenses and are so fucking dense they don't even think to ask if I mind. Actually, they wouldn't even dare talk to me. Very fucking clever. Very fucking original you dumb fuck. Anyone who asks I don't mind at all. They usually get a more original shot.

I appreciate the value of automatic copyright. I just don't understand why people think banal shots of other peoples creativity have any value themselves. It's not like they put years of training or, any great thought into the creative process.

But, then again there's this new trend for presenting other peoples photographs as your own art. No doubt someone will be exhibiting banal digi snaps from the web as their own highly creative art very soon.

I guess in short I'm just getting a bit sick of the get rich quick, disposable culture we live in. Not so bad here in Spain. Yet.

 

[Pie 1]

What really pisses me off is the number of people with cheap digital cameras trying to claim their photographs are worthy of a professional fee.
I appreciate the value of automatic copyright. I just don't understand why people think banal shots of other peoples creativity have any value themselves. It's not like they put years of training or, any great thought into the creative process.

I'm with Stanley on this one.

Nothing personal blackadder,honestly, but it's a crap picture. My instant reaction reading your OP was " 'kin hell, he expects money for that?" even though i know that you're entitled to it by law.
It's is quite simply a recording of someones piece of property, not to mention that it's badly excecuted to boot - I mean, what's so difficult about getting a shot straight

 

[big eejit]

Fortunately the law doesn't care about artistic merit.

How would that work? Judge "I don't know much about art but I know what I like" decides your art is crap and therefore not worthy of copyright protection? They'd be a lot of skint pop bands for a start.

I'm also not sure about the idea that an artist needs to put in years of training or suffer for their art. Has anyone read Der Hungerkunstler by Kafka. It's about an artist who's art is to starve himself, and people come and look at him and admire his art. But he feels a fraud, because he's just doing what comes naturally; there's no effort involved for him, it's just what he does.

It's an interesting discussion on the nature of art and the artist, and what is or isn't art.

 

[sinky]

So mabey the picture is crap/not art/whatever, but isn't the fact that blackadder went there, stood outside with his camera and took the picture worth something?
The web designers needed a picture for the website. They could have done it themselves or hired someone to do it, but instead surfed the internets and used a picture they found (aledgedly).
Is it ok to use someone elses photograph without permission/payment because anyone with a camera could have done it?

 

[Stanley Edwards]

The opening post states that the photograph has been used as Tango Joe's logo. It hasn't. The photograph is a picture of Tango Joe's logo. More than that, it is a picture of Tango Joe's commercial identity. To my way of thinking that is the commercial value of the image.

However, the web designers should have photographed the building themselves or, commissioned a photographer to do a good job.

It is a very ambiguous area. Personally, and it is only my point of view, I don't see any value in snap shots of this type. But, I guess if the image is being used commercially then a fee is due.

It does look as though the image has been lifted from the web. If you are not a professional photographer you're unlikely to get paid. Perhaps just asking for a credit somewhere on the site would be a better approach. If you are a professional photographer then demand a fee.

 

[editor]

It is a very ambiguous area. Personally, and it is only my point of view, I don't see any value in snap shots of this type. But, I guess if the image is being used commercially then a fee is due.

Someone's using his image without permission for commercial gain.

Therefore he is fully entitled to ask for a credit or compensation, or demand that the image be removed.

Whether you think the picture is any good or not is totally irrelevant. It's a breach of copyright, pure and simple.

 

[Stanley Edwards]

Someone's using his image without permission for commercial gain.

Therefore he is fully entitled to ask for a credit or compensation, or demand that the image be removed.

Whether you think the picture is any good or not is totally irrelevant. It's a breach of copyright, pure and simple.

Yes. That's exactly what I said in different words. It's my personal point of view.

However, it's not totally irrelevant because this argument would most likely be the argument put forward by the people using the image if they decided to challenge. As a non professional photographer without the support of professional photography associations and the like it wouldn't worth taking to court.

There is a very valid point that the sale of the photograph would be making commercial gain from the reproduction of Tango Joe's logo and identity. IMO. A very bollocks opinion possibly.

If someone took a photograph of one of my paintings and used the photograph for commercial gain would I be entitled to any sort of compensation?

 

[editor]

However, it's not totally irrelevant because this argument would most likely be the argument put forward by the people using the image if they decided to challenge.

They would have no challenge.

They are using a copyrighted image without permission. They are in breach of copyright.

 

[Stanley Edwards]

They would have no challenge.

They are using a copyrighted image without permission. They are in breach of copyright.

And so is the photographer.

 

[cybertect]

And so is the photographer.

No.

Buildings themselves aren't copyrightable.

http://ahds.ac.uk/copyrightfaq.htm#faq38

Specialist copyright questions
Can you copyright/trademark buildings? What if the architect is not dead - can you photograph the buildings? Can you design another building to look like another building?

Answer
Architects drawings are copyright. The building itself is not, so you can photograph it. If you used the architect's own drawings and amended them, then that is infringement. If you started from scratch but deliberately chose to mimic a design, then you are probably okay. It would be advisable to consult a copyright lawyer at this point in time!

 

[Stanley Edwards]

No.

Buildings themselves aren't copyrightable.

http://ahds.ac.uk/copyrightfaq.htm#faq38

Logos and corporate identities are.


Of course, in 99.9% of cases companies wouldn't dream of stopping anyone making commercial use of a photograph featuring their logo and ID - it's all good publicity. However, a technical argument could be made that the photographer is profiting from reproduction of the logo.

This thread has been done before quite recently. The bottom line comes down to the size of the legal fund.

 

[AnnO'Neemus]

If you're going to argue about the merit of the artistry in deciding whether an image should be protected by copyright, then that's incredibly subjective.

I might think an image is incredible/beautiful and someone else might think it's pants, and vice versa.

And why should photographic images be different to the written word? I mean the crappest airport/beach novel, even Dan Brown's novels (I thought the Da Vinci Code was poorly written) are protected in the same way that the writings of good writers are protected.

 

[editor]

And so is the photographer.

You're as wrong as wrong can be, I'm afraid.

A personal photograph of a building taken in a public place does not breach copyright. Whether it's covered in logos or not is an irrelevance.

(*exceptions including buildings covered the terms of under security restrictions)

 

[Stanley Edwards]

...

A personal photograph of a building taken in a public place does not breach copyright...

Any reason for using the word personal? And any source of reference?

The image would be of no value to the web design company if it did not feature Tango Joe's logo a ID. I think there is a case to argue in theory.

e2a; that's 'personal' as opposed to 'commercial'.

 

[Stanley Edwards]

If you're going to argue about the merit of the artistry in deciding whether an image should be protected by copyright, then that's incredibly subjective...

I'm arguing about creativity and origination - not quality. I'm saying the photograph would have no value if it wasn't Tango Joe's logo and design that made the building anything than just another building.

I guess an analogy with the printed word would be erm... very difficult.

Perhaps if someone photographed a page of writing from a book and reproduced it as a 'photograph of words' the viewer will inevitably read and so the words become a valuable component of the image. Would the author expect some creditation?

 

[editor]

Any reason for using the word personal?

Accuracy. The picture was on blackadder's own site, was it not?

But I've no idea why you're continuing with this non-argument.

If you take a photo - whether it's shit wobbly snap or a mini Ansel Adams - then you are legally protected from businesses using it without your permission.

 

[editor]

I'm saying the photograph would have no value if it wasn't Tango Joe's logo and design that made the building anything than just another building.

Unless, for example, you're fascinated by 21st century shop frontages. Or tacky signs. Or researching big beer bottles. Or studying promotional devices.

It's not up to you to decide the artistic worth of a photograph, and whether you find the building interesting or not has got nothing to do with the issue of copyright.

I take loads of pictures of buildings. You may find them as dull as dull can be, but if you nicked them and used them to promote your business, you wouldn't have a leg to stand on in court.

 

[Stanley Edwards]

Accuracy. The picture was on blackadder's own site, was it not?

But I've no idea why you're continuing with this non-argument.

If you take a photo - whether it's shit wobbly snap or a mini Ansel Adams - then you are legally ptotected from businesses using it without your permission.

It's an interesting discussion. Not a non-argument.

If I follow your argument you're saying that blackadder's photograph has been used commercially without his permission. And, yes - agreed, the photographer is automatically protected under copyright.

However, if a commercial fee has been agreed and the photographer has made commercial gain, then could the creators of the original art featured in the photograph lay claim to some credit?

It's something I struggle to accept. Photographs of graffiti is another example that's been argued here recently. Personally, I think if the photograph is simply a reproduction of the graffiti then the original creator of the graffiti is the only person who deserves the credit. However, if the graffiti is featured in a new context where it becomes just a small element of the new photograph then the photographer deserves all the credit.

There is no skill, imagination or, creativity in pointing a camera at a picture on a wall and taking a photograph IMO. The photographer has created nothing new. If the photograph is then manipulated in a way that changes the 'reality' of the original image then something new has been created.

I find it interesting to know how other people value art. Not how the legal system values art, but a theoretical legal argument helps to clarify points.

 

[Stanley Edwards]

A bit of thorough research using the web and a phone call confirms my own belief on the legal issue. I find that pretty reassuring for all artists and photographers. It seems there isn't a picture agency who would accept such a photograph without a release form from both the building owner and the logo rights owner.

No absolute definition, but the fact that they wouldn't take it on without a release is pretty much confirmation of the legalities.

This from The Image File:

Images of Logos, emblems and shop fronts

Note that such logos etc may be "artistic works" and/or possibly be protected by trade mark or passing off rights and the discussion above and the desirability of obtaining property release forms in certain circumstances also applies.

Still a little ambiguous. That's the way the legal system works. If it was all about hard and fast rules lawyers would soon become redundant.

 

[big eejit]

It's something I struggle to accept. Photographs of graffiti is another example that's been argued here recently. Personally, I think if the photograph is simply a reproduction of the graffiti then the original creator of the graffiti is the only person who deserves the credit. However, if the graffiti is featured in a new context where it becomes just a small element of the new photograph then the photographer deserves all the credit.

There is no skill, imagination or, creativity in pointing a camera at a picture on a wall and taking a photograph IMO. The photographer has created nothing new. If the photograph is then manipulated in a way that changes the 'reality' of the original image then something new has been created.

This discussion came up at a flickr meet I attended recently. An actual resolution was that the photographer and the graffiti artist shared the profits of any images the photographer sold. This actually happened and worked apparently. Not sure how it works if you don't know who the original artist was tho.

 

[Stanley Edwards]

...Not sure how it works if you don't know who the original artist was tho.

This is a very critical point ATM. What with people trying to push the 'Orphan works' (or, whatever they call it) through law rights (or, whatever they call them).

There are millions of unaccredited pics on the web. There will be millions more very soon. The legal responsibility is currently on the photographer and publisher. But, if neither are known/recognised owners of copyright where do you turn to for recourse?

It won't be long before the web is full of strong, commercial, profitable images that have no known originator or, creator. Should such images be free for use in commercial gain? Even images featuring other peoples creations? The industry is saying 'yes'. As they would.

Most of the photographers and artists I respect most keep thier own work off the web if they can. I take the opposite point of view. I have no problem with people circulating images on the web. I rely (or, at least intend to rely) on money from sales of hard copy prints.

The world's going wobbly here ATM and there have been very few test cases that protect the photographer or, the original artist. However, in the case of graffiti it was never meant to be about money.

Was it Banksy?

 

[laptop]

This discussion came up at a flickr meet I attended recently. An actual resolution was that the photographer and the graffiti artist shared the profits of any images the photographer sold. This actually happened and worked apparently.

Exactly what should happen - just as in music. (Except for technicalities like not having to ask to make a cover version, just share the income.)

Not sure how it works if you don't know who the original artist was tho.

Finding out isn't as hard as some are making out (to score a political point).

Look at the metadata - if it's been removed, you've an indication the photo you're looking at is stolen (and it's an offence to remove metatada).

Once you've got a photographer's name, www.dacs.co.uk can very likely forward a message to them if they're trying make a living from pictures.

And - in reponse to the OP - as a rule of thumb, invoice them for (at least) twice what you would have charged if you'd asked nicely - see www.londonfreelance.org/feesguide/photo.html and the (slightly oddly structured?) www.londonfreelance.org/feesguide/PhOnlRat.html - noting that use in a commercial logo would be more expensive than an "editorial" photo - compare www.londonfreelance.org/feesguide/PhPubRat.html

Then add another 50% on top, for leaving your name off. (A Scottish Small Claims court judge recently did that off their own bat, unasked )

If they were rational, they'd pay up immediately.

 

[big eejit]

I meant the orginal graffiti artist, laptop. They're not always that willing to make themselves known.