you've freely admitted you used his photo and altered it slightly, I don't think you have an argument at all. £130 is reasonable for unlimited use of someone elses image that they have the rights too. I got paid £75 for a single use in a magazine for a photo of mine and that was 10 years ago so £130 sounds fine to me as your are selling the images for £6 and have already sold multiple copies.
at the end of the day they guy owns that image, just because you found it on the internet isn't an excuse. if you were sharing it and gave the guy a credit or link it'd be different, as you are using it for monetary gain it's a different thing all together
I’m not sure it’s so clearcut - Richard Prince made a big reputation and probably lots of money “rephotographing” other peoples work.
the photo which has value
The painter didn’t make the photograph and that’s the thing with value.
Don't agree. But then I'm coming from the artistic side. It's how my brain works, can't change my mind.
Though I have sold artworks - it's only ever originals copied from my own photos.
Then again, re-absorbing what the OP wrote "digital wildlife paintings on an iPad Pro and sells prints." Hmm, my view is swaying now.
I've done a couple of things on ipad and it's shit easy to make an artistic creation from a photo. Here's one I did.
It's significantly changed from the original, and there's no "copywrite" stated on the original, but I definitely wouldn't sell it as an original piece. Well, only for life changing money 😀
I’m not sure it’s so clearcut
Agreed, it’s not clearcut. However, when Prince was recently sued by another artist (for copyright infringement) his defence failed
https://copyrightalliance.org/ca_post/fair-use-graham-v-prince/
Don’t agree. But then I’m coming from the artistic side. It’s how my brain works, can’t change my mind.
No, you’re coming at it from your bias/judgement as to what ‘value’ is.
You may appoint yourself as ‘the artistic side’ yet that doesn’t make you the arbiter/judge of ‘value’.
I’ve done a couple of things on ipad and it’s shit easy to make an artistic creation from a photo.
That really depends on a whole lot of things. It can be as easy or as difficult as you like. Same as traditional media. One may trace, one may copy, one may paint, sketch, draw, stamp, collage, etc etc as meticulously (or as directly/with abandonment) as one wishes. I could spend a year or more on one piece, or a few moments. Also, ‘easy’ and ‘hard’ are not objective metrics. The value of a piece of art is not like the value of a piece or silver yet neither is it wholly ‘this took me 400 hours to make, and I didn’t use a reference image! Ergo, this Picasso sketch that took 10 seconds is worthless’
I recently used an Apple Pencil and ipad to make a tonal study for, er, study (practising for an online study course I’m working on)
It was (the way I chose to go about it) an almost an entirely identical process to how I make a gouache or acrylic sketch (ie an opaque/semi-opaque medium, painted with varied brush profile from (chronologically) wide to narrow-tipped. I took my reference photo and placed it on a layer in the top left, then painted from sight as if painting a still-life.
Of course I could have just applied an ‘art’ filter directly to the original photographic source, but then I’d have taught sweet FA about painting and drawing, tonal valueetc. Still wouldn’t necessarily add or subtract ‘value’ for the sake of copyright though.
The fact that a work is digital is in itself entirely unrelated to the effort/expertise of anŷ piece. I could instead have painstakingly constructed the entire image in a (manual) pointillist style (again with the stylus) just as with traditional media. Again using a photo reference. Would have taken weeks. So not seeing how that would that be ‘shit easy’?
The £130 is an extreme price and one I wouldn’t be paying.
I an assure you it is not an extreme price and you negotiate the price before usage. After you have stolen the image you are stuffed and have to accept the photographer’s fee structure.
Normally it seems pics are quite a commodity, and a couple of hundred seems the minimum, as thats for an innocuous view of a chair leg or other non artistic composition.
One where a professional has taken the time and has the kit, and the accumulated knowledge to take a lovely picture(We've all seen the difference on here between them.)
Its his talent for judgingthe picture coupled with his experience ands expensive investment that his potential customers are attracted to.
It would be unreasonable to suggest everyone is a pro photographer off the bat, even if its a £5K camera. Not having seen Mrs TheArtistFormerlyKnownAsSTR's work which im sure is very nice but you might find that the photograsphers work is what attracted her to it in the first place.
Folk that are good or enjoy this have a trained eye, and always seem to pick out the best of a bad lot, or the gem in the carboot sale. Their eye is drawn to these things.
So capitalize on that 😀
See if you can do a deal with him for some more of his photographs 😀
Im sure a collaboration, as although he takes the pic, its unlikely he'll have the experience of digitizing them to the same degree as the Mrs.
Likely find the suggestion of that, implying more income will appeal greatly and change the entire tone of the conversation.
Currently al income is good income, and in economics the supply and demand curve really shoots up for example turning normally expensive photos into inexpensive prints.Obviously you need to sell a set number to cover the outlay, but cheap sells, and something thats nice, is creative and worked upon is more appealing.
@LittleNose I’ve been thinking I need to do something like that- I’ve got a garage remote that I tend to leave in my pocket and always paranoid I’ve pressed it. what’s your hardware and software? Camera inside the garage?
My garage is a different colour if there’s any copyright infringement.. 🙂
I’m curious about the idea of a digital wildlife painting. Is the starting point the photo or do you do it from scratch? I’ve never tried it and remain resistant to the idea of getting an iPad let alone doing art on one! How much of the art is from the artist and how much is clever software?
Sorry if I have missed it but where did she find the image online?
I'm guessing if a photographer took a photo of a hare/mtber and sold rights to it to a local hotel who used it on their website then an artist downloaded the photo to use as source material for a painting it would depend on what was sold to the hotel as to if the artist owed the photographer or the hotel money.
Do you know for sure if the photographer still owns the rights to his own work on this occasion?
It's a world I probably need to find out a bit more about - if for example I took an image from a BBC/local tourist authority website and used it on my own profit based holiday home website there is a reasonable chance I owe someone something....Or if a professional photographer (or you or I) posts an image onto instagram in the public domain is it now a freebee anyone can use or do they (we) still have some rights to its commercial use?
A friend had this in another way - a photographer took a picture of her at a vintage surf competition. It was very much a photo of her (and only her) rather than a picture of the scene/beach with her in it. Also very obviously her. He asked her permission (i.e. she posed momentarily for it) and she agreed verbally. The photo was picked up and used in a national advertising campaign - on the tubes, side of busses, in big glossy ad mags etc. First she knew about it was stood on a tube station and a random person at a station tapped her on her shoulder and asked her if they could have a photo of her next to a billboard and she looked up and got the shock of her life! Located the photographer/ ad firm and got a bit of advice and was told this was all legit and she was not entitled to royalties as it was taken at a public place and she gave verbal consent at the time and something was in the T&Cs of the competitions. Not sure if things have moved on or she poorly advised. She was mostly flattered but still seems a bit bizarre you could find 8ft high photos of yourself relatively scantily clad all across london without someone telling you first!
I’m curious about the idea of a digital wildlife painting. Is the starting point the photo or do you do it from scratch? I’ve never tried it and remain resistant to the idea of getting an iPad let alone doing art on one! How much of the art is from the artist and how much is clever software?
This is a piece of string question. If you wish to paint/draw in digital medium then it would be worth watching a short video for an introduction/explanation. A popular app is ‘Art Rage’ as it mimics natural mediums quite well. Mediums, not drawing/painting skills!) I also use that app, yet more often ‘Procreate’ which has access to edit shapes and has more advanced layer options. They are both appreciably/sufficiently different apps to justify having both IME and can be as involved or as simple as you wish - with Procreate coming out on ‘top‘ in this respect ie either simply sketching with a ‘pencil’ to building complex layers and creating custom brushes, similar to how I would compile an oil painting (ground colour/‘dead’ colour/tone, successive colour glazes of varying opacity etc, etc)
Some digital photography apps digital filters now actually ‘mimic’ drawing/painting skills. ie PaintCan app or any number of ‘make mŷ photo into a (sic) sketch’ apps. These are confusing the issue of ‘digital painting’ yet in all honesty are pretty easy to identify as a ‘crappy filter’ although this will of course change as processes become more sophisticated. In order to evaluate such a process I took one of my still life photographs and ran it through PaintCan (you still have to work at it, choose brush widths, styles etc but I have to agree it’s shit easy! It’s only a ‘posh’ photo filter after all!
Here: (my photo above, mŷ PaintCan filtered image below)
Of course the source image is key to success. A snapshot still looks much like a snapshot with any ‘paint’ filter. The result of my experiment still IMO looks underwhelming and I’ll stick to oil paints thanks. I do like digital/tablet PC for sketching and painting and teaching, but I prefer to use it as a medium and not as a filter-factory for applying naff painterly effects.
In the interests of art and science 🥃🍒 - here is my original source photo (from last autumn). Yes I had to go and collect those wild ‘cherry’ plums, construct a tabletop studio with adjustable daylight-spectrum lighting, arrange the still life, take pic, post-process etc.
I hereby license the above photograph for anyone to use (personal use, non-commercially of course).
Now - to ‘cheat’ (ie for fast results and to mimic actual painting) - grab a download of PaintCan and see what you can make of it? In the aforementiined experiment I used a finger to apply the filter/brush rather than a stylus. To actually paint the image yourself, OTOH, then download a free paint app and paint from scratch using a tablet with the source photo as a reference, ie propped up alongside your tablet on your smartphone screen.
if a professional photographer (or you or I) posts an image onto instagram in the public domain is it now a freebee anyone can use or do they (we) still have some rights to its commercial use?
It belongs to the photographer it’s no different to them being displayed in gallery, it does not take the photographers rights away.
As for your friend. Correct nothing they can do it a photo taken of her in public, now there is difference when comes to endorsing the product but it does not sound like they were claiming your friend endorsed the product.
If I were you I'd want it to be very clear what you are and aren't paying for. Are you buying the rights to sell the drawing, or is this figure he's pulled out of his arse supposed to be some sort of damages payment.
The bloke is a bit of an arse tbf, but maybe he gets this a lot – his initial message seems like he has a standard procedure.
I appreciate the horse has bolted, but I'd be applying an attitude filter. Someone going "look, I noticed you're selling this, you probably weren't aware but it's my photo and..." would be far more likely to get what they wanted than someone whose opening gambit was "I'm an important lawyer and I'll sue you for a squillion pounds unless you pay up." We get them from time to time on STW over some random three-year old post or other and it's always the latter straight out of the gate.
Bear in mind also, some people do this professionally as there's potentially more money to be had than just by selling photos. There was a thread a couple of weeks back where someone had received a ZOMG LEGAL shitogram from a notoriously prolific sender of threatening letters. And whilst he may technically be in the right it rather sounds like that's what you're dealing with here, £125 is sufficient wedge to justify a couple of speculative emails but low enough that most people will go "oh, I'll just pay it, I don't want the hassle" (and QED, it clearly works). If it were me I rather think I'd be offering a gesture of goodwill and then referring him to the case of Arkell vs Pressdram if he pulls his face about that.
got a bit of advice and was told this was all legit and she was not entitled to royalties
Yeah. In the UK you don't hold any sort of rights to your image, there's (usually) nothing in law which would prevent you from taking someone's photo.
There are exceptions to this. Some places have inherent restrictions, it's illegal to take photos on a railway platform for instance. But day-to-day it's absolutely fair game.
I’ve a bit of experience from the side of the photographer. I had a lot of photos stolen and ended up getting a company that chase up infringements for me. It brings in a few hundred a year. I get a choice whether to pursue or not, (they have software that finds matches), and if it’s a small business I normally don’t but mail them and ask for credit. What really annoys me is the other holiday companies using my photos. Last time it was a well known American woman’s only week in Tenerife. I mailed them direct and asked why they were advertising that trip with a photo of two men in the Basque country! She wasn’t even that apologetic and I had to really push her to take it down.
Anyway three things that are relevant to you.
1: €130 isn’t much. Normally I get more per photo and that is after that company take a cut.
2: Sometimes I get a mail saying a resolution wasn’t reached. I guess that means the person ignored a few emails and they couldn’t be bothered chasing it.
3. Before my volume of thefts reached the point it was worth getting a company to chase for me, I used to mail people myself. The most common response was that Jimmy from work experience had uploaded it and they didn’t realize. That they would remove it. Any chasing beyond that resulted in silence.
Id suggest a nice email explaining that it’s a hobby and that your wife genuinely didn’t realize. That you have removed the photo and offer them the profits from the sales. I’d stick firm at that. He isn’t going to lawyer up over one photo, if he was then it would have been his lawyer who contacted you initially.
No, you’re coming at it from your bias/judgement as to what ‘value’ is.
You may appoint yourself as ‘the artistic side’ yet that doesn’t make you the arbiter/judge of ‘value’
unlike you, I’m not trying to be a ****ing arbiter or judge, just saying thats where my opinion on a chat thread comes from. 🙄
Jog on to the muppet and a 🤣🖕emojis
Are you saying it was the landowner shoeing film crews away, can they do that?
Not the landowner no - that area is largely owned by the National Trust and the Tetrapak family - there are plenty of people who live and work there who don't own the land though.
Thanks for all the contributions to this.
He thinks she's used 2 images (she thinks only 1) but he's backed down a little and asked for £75 per image for an amateur licence as she's a hobbyist rather than professional.
Just going to pay him for what he thinks he's due and chalk it up to experience.
She's now using Pixabay for her source images
Sounds a healthy result.
@muddyjames - yep in the garage... I'll send a pm, so as not to derail this thread
I’m curious about the idea of a digital wildlife painting. Is the starting point the photo or do you do it from scratch?
Forgot to to say, ^ it depends on what style/genre you're aiming at. I’ve sat in a caravan with my ipad and painted moon/moonlight because I could neither photograph it effectively nor paint with traditional media without bringing too much artificial light into the setup.
But ignore the ‘digital’ bit for a moment. Say you want to paint ‘a wildlife painting’
Are you going for abstract, realism, surrealism, fantasy/illustration, pattern (tattoo?), etc etc? If realism, then (speaking as a painter who dabbles in realism) then the last time I studied a hare I went to the Bristol Museum and Art Gallery and photographed some of the taxidermy collection. Hares are shy (and fast) wild animals and notoriously difficult to study unless you have access to a captive/rescued one
Often (usually) it additionally helps to make a number little sketches on location (in this instance the museum) to quickly record/understand the specific planar surfaces which can (and do) get lost if working directly from a photograph
https://www.crimsonart.net/line-surface-action.html
You can (I suppose, completely, from scratch ‘imagine’ a creature up from your memory using no reference whatsoever? And see how that goes. I assist illustrators from time to time who get stuck on a particular element. Lately it was a shoe. She wanted to draw a particular shoe but didn't have access to one So I made a number of sketches from online catalogues and old illustrations, and sketched up a composite one at the correct angle and scale required for the illustration (ink and watercolour). I provided it pencil on parchment as she prefers not to use digital.
Even a simple silhouette of a (say) hare would normally require you do your observational studies and this requires source material whether the animal is alive, dead, a photo (or prior wildlife illustration)
I suppose if you’ve painted/drawn nothing but hares for some times then there may come a point where you can dispense with external reference as all the surfaces, textures, eye-shape, proportions, musculoskeletal structure of ‘hare’ become fully learned/memorised. Then, you might ‘paint from scratch’? Although there aren’t any ‘rules‘ as such, unless you are being paid to produce a zoological/science illustration.
unlike you, I’m not trying to be a **** arbiter or judge
Me neither, hence I couldn’t get how you were assigning/subtracting ‘value’ to and from traditional media vs digital vs photograph vs painting (of photograph) etc etc. Apologies, seems I misunderstood and certainly wasn’t ‘judging’ you, just disagreeing (and misunderstanding, obvs).
(Hands beer?)
the last time I studied a hare I went to the Bristol Museum and Art Gallery and photographed some of the taxidermy collection.
Mate, you've be done. That's clearly not a hare.
Someone must’ve changed the label. ****ers.
If the £130 includes ownership and all future rights, I’d pay it and get the agreement in writing. Then get her to market more widely. It will be a sound investment bet time.
Welcome to the world of copyright.
Oh balls, I’ve overreacted again, definitely going for forum positivity from now on.
*accepts*
The £130 is an extreme price and one I wouldn’t be paying. I would counter with the money made and leave it at that.
Bwahahahahahahaha! Seriously? I worked in print and publishing for over thirty five years, and it was often necessary to obtain photos from libraries for use in a brochure or some other print job. Back then, you had a stack of large glossy books from the various libraries from which a photo was chosen, then the original transparency was posted to us and we’d scan it, or a repro house would scan it and send a digital file on disc or via ISDN line. Then, the standard cost of a single use, for one project of a given circulation was £250. Please, don’t try to tell me that nearly forty years on, £130 is an extreme price, ‘cos it ain’t.
Bit of a nasty situation. It’s copyright infringement - seems like she DID copy the guys photo. That’s clear enough. Lesson learnt. As to what she might be due to him don’t fret about the big fines and suchlike mentioned above. That is for criminal copyright infringement, which is major piracy etc. This is undoubtedly a civil issue, not a criminal matter. Guy would be entitled to sue to get an injunction (to stop you infringing), get hold of any infringing product (not relevant here), and be entitled to damages or an account of profits made as a result of the infringement. If he really sells the images for £130 then he could argue reasonably that he’s missed out on the sale to the OP’s wife, so that’s the damages. An account of profits would be the profit your wife made (<£25). If he sued and won he might get an award of costs. But if he sued after you had made a reasonable settlement offer, and over such a trivial matter, the courts would be very pissed off. He ain’t going to sue. An hour of a half decent IP lawyer is £300+, and it just isn’t worth it for this. But probably the decent thing is to pay for the image and chalk it up to experience.
We must now see the offending article OP.
Pay him the £130 for his photo, just to stop your wife being stressed.
But now you “own” it, stick her pictures back up for sale .
Hopefully in time it will pay for itself, if not then lesson learned ?
Yeah I'd be inclined to have something in writing stating exactly what that £130 was for, is it for "owed rights" for the previous use of the image, us it for yhe right to have a copy for personal use/display or does it entitle your missus to continued "reproduction" of his image?
£130 to make him go away is one thing, but why not see if this could be more mutually beneficial.
Also are there any other digital image rights holders lurking out there waiting to pick on another of her works? One pay out without a forward agreement might set a precedent for others...
Just before you hand over any money to him. Are you both based in the UK? I’m that case I don’t believe that copyright infringement has necessarily taken place. Whilst we do have rules about adaptations between one media and another (eg books into films) they do not apply to photographs to paintings. You may want to read up on that. Beware most explanation of derivative work is based on US law which is not like for like the same as in the UK. If the photographer was outside the UK, then it just got really messy.
Of course that’s not to say that you don’t owe the photographer and moral duty if you use his composition but it may be he is mistaken about his rights.
He thinks she’s used 2 images (she thinks only 1)
He thinks, she thinks. Do neither of them know?
Whilst we do have rules about adaptations between one media and another (eg books into films) they do not apply to photographs to paintings
What makes you say that? Citation/link would be helpful in support of that claim? I thought that we were Berne Convention signatories?
Again, from the link I posted earlier:
There are some differences between the laws of member countries, particularly between the European and American nations but much harmony around the principles now exists.
Practically every country in the world is signed up to the Berne Convention (Afghanistan joined in 2018), or is held to it in some degree by other international bodies such as the WTO. We dare suggest that UK Copyrights, for visual artists worldwide are largely ‘Brexit-proof’!
It is important to know that copyright does not protect the idea themselves, but it only protects the tangible expression of the ideas. In essence, this simply means that, for instance, where a person paints a particular landscape, it does not mean that another person should be prevented from making a picture of that same landscape. However, it might be difficult to define the line between expression and ideas in a situation whereby two people take a photo of the same object.
Artworks such as paintings, graphic works, photographs, sculptures, collages, and works of artistic craftsmanship are covered by copyright. Copyrighted works are protected from being represented in any medium. This means that a sculptor cannot copy a 2-D artwork, nor a painter copy a sculpture. An exception is made for works of art that are incorporated into public spaces, or permanently on display in publically accessible buildings. In this instance, anyone is allowed to make graphical representations of it, as well as include it in photos, films or broadcasts.
https://www.loxleyarts.co.uk/understand-artists-copyright/
AFAIK (IANAL) Under the Berne Convention, ‘fair use’ (in the UK the term is ‘fair dealing’) is a complex and subjective matter but it still covers all media listed under the convention, the UK being no exception?
What is a derivative work?
A derivative work is a work that is based on (derived from) another work; for example a painting based on a photograph, a collage, a musical work based on an existing piece or samples, a screenplay based on a book.Making a derivative work
Permission.
Legally only the copyright owner has the right to authorise adaptations and reproductions of their work - this includes the making of a derivative work.
https://copyrightservice.co.uk/copyright/p22_derivative_works
IANAL, but I’d really like to know if others can (without license) use my work to render derivative works for commercial purposes
He claims she has - one looking the opposite direction, she thinks she's just used one image and flipped it.
It's a hare, they all look the same 😂
I've paid him anyway
I’ve paid him anyway
For an actual license? Or to be ‘quiet’?
If the former, then (as others have suggested) there is maybe the opportunity to make an honest profit/recoup costs? Again, the terms of the license would be specific.