27 replies to this topic

[Wishbone]

Hi guys,

A member of my local site has just alerted me that a UK based company is selling t-shirts with my photo on it...

Do you think it's the same photo? It's obviously altered...

Slick Activewear t-shirt
http://www.slickacti...products_id=298

My photo:


Compared side by side:



And if it is - is it a violation of my rights as author?

Thanks,

Ivan

Edited by Wishbone, 01 February 2009 - 09:23 AM.

[The Octopus]

looks close, but arms are in different positions, legs are slightly off as well,
not the same in my opinion

[Wishbone]

looks close, but arms are in different positions, legs are slightly off as well,
not the same in my opinion

I really hope so!

I spoke with two graphic designers already they tell me it's my image but altered.

[underwatercolours]

This is absolutely derived from your image. There is no chance this is a coincidence. The graphic artist traced the silhouette and modified the arm and spear gun. Very simple to do in Photoshop or Illustrator. If this happened to me I'd be going after them for compensation. I know the steps in the US for this, but not in the UK where they are located. Good luck.

[ce4jesus]

yeah...too close to not be the same image slightly altered. I think that would be tough to prove though with all the speer fish photos online.

[Wishbone]

yeah...too close to not be the same image slightly altered. I think that would be tough to prove though with all the speer fish photos online.

Thanks a lot guys!

I wrote them an e-mail saying that I would love to see the actual source and if they have used my image i am ready to discuss contracting proper use.
I'd keep you posted on the developments!

Cheers,

Ivan

[Wishbone]

Alright, I guess I am facing a legal dispute...

Since there was no reply to my mail, I called their phone.
The guy angrily disputed my polite questions claiming that they never use photos and they are artists. I told him with all due respect that I do not belive this and their image is derived from my photograph with very few changes. he told me i am mistaken...

So if anyone could help me find a legal assistance in the UK - success fee can be whatever they want. I am not doing it for the money - they just pissed me off...

What else can I do to expose their business?

Ivan

[BartB]

If only there were some kind of computer-based communications system where you could put warning notes about this company...

[Wishbone]

The company finaly replied to my mail and here's their response:

Dear Ivan,

In response to your email dated 4th February 2009:
We do not consider that we have an argument with you, as you do not have any legal grounds for a dispute regarding our products and designs.

As explained to you on the telephone, we do not publish photographs. We use designs, paintings, artworks and artist’s impressions that are created by our company for our products.

Your photograph and our design hold a host of differences despite some resemblance in the diver’s posture. We do get our inspirations from various sources but the final images are creations in their own right which do not infringe anyone’s copyright as no one can claim to have created these original and final images/artist’s impressions other than ourselves.

However we have noted your comments and concerns and do not wish to upset anyone as we can see that this matter can be resolved very simply.
We have consulted our artist and asked him to rework this design so that any ambiguous resemblance is excluded.

We have now removed the products with the former design from our site and will be supplying a new version for our ‘Let’s Prey’ garments.
We trust that this will put your mind to rest regarding this matter.

Slick Activewear
--

www.slickactivewear.co.uk

Email: customer.services@slickactivewear.co.uk

Tel: 01970 880960/796

And my response to that:

Dear sir or madam,

Thank you for your e-mail.

I presume that your graphic artist has used my photograph as source for his creation which is also an infringement of my copyright. It is as if your artist has drawn a Mona Lisa with moustache and glasses.
I appreciate your response for this matter, which will be shared with the Underwater photography community.

Please have in mind that any of us – the amateur photographers rely exactly on companies like yours to recover the extremely high cost of equipment and travel. Such photographs bear the risk of losing equipment worth thousands of pounds, not to mention the risk of diving itself. Not to mention that the stock cost for using such photographs is rather cheap for a company to expose itself at such risk – it could be estimated at some EUR 500 annually for up to 2000 garments. Maybe you should consider this amount for any future use of my artwork.

I have already made contact with local UK lawyers and I am expecting their response. If this response is positive I am still considering a legal action or a dispute resolution procedure unless we can settle the issue.

I laughed a lot when comparing my photo to Mona Lisa and when offering them my other works!

The have removed the design from their website and the new one is already there: http://www.slickacti...products_id=285
I cannot believe they did that for two days which means they have started the work immediately after my first contact with them.

I'll keep you guys posted!

Ivan

[rtrski]

Although I tend to agree that your photo probably was the source, I'd have to say in my (admittedly uninformed) reading of U.S. "fair use" policy, that they're also in the right. As long as they substantively changed the work, and are not reprinting it as a photograph but as a pure drawn silhouette (no matter how slavish the drawing) it would be considered a transmutive work.

Every dang art student in grade or middle school has 'copied' at least one 'photo' in their classroom - reproduction of what you see is one of the first steps in any art learning, even before you try to do it from an actual 3D model (or still life). The fact that its not for financial gain has little to do with it. Was Warhol's drawing of a Campbell's soup can plagarism? He was clearly reproducing Campbell's logo, label style, etc but in a different format. Only the tool in this case (the use of a computer vs silkscreen process) is really different.

Although I usually hate Wikipedia being brought out as any sort of exhaustive reference, the section here on fair use seems informative, to this layman's eye. http://en.wikipedia.org/wiki/Fair_use

The use of a drawn silhouette on a T-shirt doesn't 100% mimic the photo, doesn't "diminish the market for the photo" (as it would if they simply photoshopped it to remove a © marking but otherwise left it substantially and clearly a "photo" on a t-shirt), etc.

Gray area, for sure. Seems to me by changing their design they're acting out of an interest to be completely fair to you and avoid conflict...not admitting "guilt".

Of course all my random blathering applies to U.S. law and my (mis?) understanding thereof. Perhaps U.K. law is totally different?

p.s. no insult to your photo at all, I like it, but I have to admit I like their new 'reworked' image better in terms of use on a T-shirt. The 'missing arm' (the diver was clearing his ears?) works in a photo that's clearly of a real person, but to me in a stylized rendering of the apocryphal "i'm so cool" freedive-hunter, the arm out with watchband visible looks better. You may have just inadvertently helped them make a better T-shirt. Maybe you should get a consulting fee for that?

Edited by rtrski, 05 February 2009 - 02:11 PM.

[Wishbone]

p.s. no insult to your photo at all, I like it, but I have to admit I like their new 'reworked' image better in terms of use on a T-shirt. The 'missing arm' (the diver was clearing his ears?) works in a photo that's clearly of a real person, but to me in a stylized rendering of the apocryphal "i'm so cool" freedive-hunter, the arm out with watchband visible looks better. You may have just inadvertently helped them make a better T-shirt. Maybe you should get a consulting fee for that?

I have to totally admit that you are right! Their new design is totally better!

As long as the copyright goes - it is definitely a grey area for me too. Whether their work could be qualified as copyrightable derivative I cannot say - especially under the UK law.
I am specialized in completely different legal field. Not to mention there are international conventions on that and EU regulations that recently made even the basic rules I was taught in law school completely obsolete...


I do appreciate what they did too!

Cheers!

Ivan

Edited by Wishbone, 06 February 2009 - 02:06 AM.

[photovan]

Fees aside, I just wish artists in general would admit to it, rather than relying on the coincidence excuse.

I don't deny their talents at all, I wish I could paint/draw/sculpt/compose but, I do think it a unconscionable that (most) never admit to drawing inspiration from anywhere. It's no mystery that no idea is a new idea (some exceptions of course).

Maybe they believe people will think less of the work if it's been "copied", which is a shame, as it is usually an interpretation in some way or another, which is what art is partly about anyway.

[pakman]

Ivan, you might find this article about the Obama poster and original AP photo dispute interesting...

http://www.nytimes.c...0fair.html?_r=1

BTW, nice shot

[Wishbone]

Ivan, you might find this article about the Obama poster and original AP photo dispute interesting...

http://www.nytimes.c...0fair.html?_r=1

BTW, nice shot

Thanks a lot for the link Pakman! This dispute is very interresting indeed and I guess from a legal point of view you can find certain similarities...
What's different though is that Slick Activwear in "my" case grabbed the photo for strictly commercial and not artistic purposes.

I found also another photo the slick guys stole in similar way, but I'll post more about it after I see what's the outcome of the lawsuit.

By the way here's what the ppl at CopyrightActuion think about it: http://copyrightacti...an-infringement

Cheers,

Ivan

[photovan]

.....
By the way here's what the ppl at CopyrightActuion think about it: http://copyrightacti...an-infringement
...

I think yours is an excellent approach to pursuing this. It will be interesting information for us all if it goes further.

[H2o junky]

Please have in mind that any of us – the amateur photographers rely exactly on companies like yours to recover the extremely high cost of equipment and travel. Such photographs bear the risk of losing equipment worth thousands of pounds, not to mention the risk of diving itself. Not to mention that the stock cost for using such photographs is rather cheap for a company to expose itself at such risk – it could be estimated at some EUR 500 annually for up to 2000 garments.

I have already made contact with local UK lawyers and I am expecting their response. If this response is positive I am still considering a legal action or a dispute resolution procedure unless we can settle the issue.

You should be careful what you say mate, you could be done for extortion if you send emails like this to companies.

Check wikipedia:
http://en.wikipedia.org/wiki/Extortion

Are you hard for cash or is this a normal practice where ever you are?

Really not impressed.

[jeremypayne]

Really not impressed.

Would you mind introducing yourself and telling us a bit about who you are?

[Wishbone]

Would you mind introducing yourself and telling us a bit about who you are?

I personally do not think this is necesarry..
I guess this user mixes defending your rights with extortion.
But it's a completely legal issue now and I'd comment further when it's resolved.

Oh, and yes.. I am hard on cash! Everone practicing digital underwater photography is always hard on cash.

Cheers!

Ivan

Edited by Wishbone, 19 February 2009 - 06:36 AM.

[jeremypayne]

Irrespective of the law, this company is ethically bankrupt.

Slick Activewear took this image without permission and exploited it commercially. That's low.

I don't know whether it is illegal or not as I am not an attorney or familiar with UK law, but from a lay person's perspective the theft is obvious and without excuse.

If H20Junky is connected to this firm, then they are even more stupid than I had previously thought.

[TheRealDrew]

FWIW a quick list of some fair use/non-fair use.

Fair Use Overview

To me, personally, I find that intellectual property rights are often ignored and under valued. As I have said before, take a photo, make a video, write some software, etc., have someone "borrow" it and get back to me how you feel on the subject matter. (Not speaking to anyone here, it is a general "you") I have discussions with people who feel patents are fine, but copyright is not something because books, photos, music and the rest shoud not be protected.

Photographers may get the short end of the stick because they are not painters, sculptors and so on. The are just taking a photograph, nevermind the fact that there is a creative process in getting the shot Sure some things may be a dime a dozen type shot in terms of positioning and subject matter, but something that is very distinct. Oh well, I will get off my soap box right now.