there are lots of similarities in the structure of the cloud. But I don’t think they are strictly identical.
but copyright law isn’t about having exactly the same pixels. the artistic aspects of it are basically the same.
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I’m squinting and twisting my neck, but I still can’t see Einstein there.
If this was upheld, it would be a chilling effect for the common and generic design practice of “Mood boards”.
You source a bunch of images, or fonts, or colour swatches … but basically mostly images cut out of magazines or downloaded from the net - be it watermarked image banks or unattributed google searches and pintrest boards.
That’s your inspiration. The team waves at it and adds and removes what they like. That’s the process. The shit you are looking at is, individually, almost certain to be copyrighted in itself. But you don’t let that bother anyone at this point in the process.
Then someone goes off and makes something inspired by that. The concept art. Which may even be collage or mashups of of the other stuff. Then eventually there is a final product. Which is expected to be a different thing. It’s even someones specific job to ensure the final product has anything recognisable either attributed or obliterated.
To be castigated for referencing recognisable stuff in a pre-production phase would be a ridiculous blow to the industry. And to anyone in art school, for that matter.
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We’re in agreement that it ought to be considered fair use, but that’s a determination for a court and could go either way. The “research” and “teaching” definitions are, if I remember right, construed pretty narrowly, but the fact that it was heavily modified could weigh in favor of fair use.
It’s pretty clear, though, that absent a fair use defense the picture meets the statutory definition of infringing. You don’t have to commercialize something for it to be infringement. All you have to do is make an unauthorized copy or unauthorized derivative work, and you are in a position where you can be sued and have to prove a fair use defense.
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Just curious… this is a cloud… is it fair to assume that the photographer is not the only person who saw this cloud? While it seems likely his image was the source, it could be argued that this is based off of someone just seeing a cloud like this, no? I mean, how do you determine the source being a photograph versus just, you know, nature? Just curious because I seriously don’t know…
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I did say that I am not a lawyer. If he finds a copyright lawyer that feels he has a case, then maybe he has a case. It’ll be up to them to convince a jury.
For me, concept art is not designed as product. It was shown in a behind-the-scenes situation on TV. As has been mentioned elsewhere in the thread, nobody who wants that photograph would settle for a still image of concept art captured from a TV screen. If this showed up in a book – so print; the same medium as a photograph – then I feel he would have a stronger case and a claim to royalties/damages based on the sales of that book.
Claiming he deserves money for an image that appears in a TV show seems insane. I can picture a win causing a sudden blurring of all kinds of images that wind up in TV shows/news reports, and further degradation to our Creative Commons.
But again, IANAL.
As a show of good faith, I feel they should negotiate the rights with him to include the image in a book. Because yeah, his photo is absolutely the one used in the concept art.
Nobody creates in a vacuum, but copyright laws and lawyers are making it harder and harder. Like slogging through mud, to the point where someone might wonder if it’s even worth doing.
I know when I was in art school, the internet was barely a thing, but we were encouraged to create photo morgues – collections of images from magazines, newspapers, ads, books, everywhere – from which to draw inspiration. I also had one instructor who had worked for Hallmark and Disney who was pissed at me for spending time redrawing something for a mockup in my graphics design class. He told me that I should just trace the original image; most graphic designers didn’t even know how to draw; I would be better off spending my time working on alternate layout options.
I’m sure this is a similar situation. They didn’t have much time, it’s concept art that isn’t meant to be seen in the final production, it showed the look they were going for, slap it on a board and move on to the next scene.
The person/people involved in creating the concept art doubtlessly had nothing to do with choosing the images used in that behind-the-scenes show, with the possible exception of the creative/art director(s).
If all concept art needed to be licensed in order to be used, costs of productions would skyrocket.
However, they should also be sure everything they are showing has been licensed before airing it. So I can see that side of it as well.
I’m not sure which way I would go if I were on a jury for this case.
True, however the photographer did not make that cloud. He did chose his angle, framing and camera settings, but with something that size his options are realistically somewhat limited. Unless he really did something to make it even more impressive; I’m not much of a photographer, so I have no idea what pre-/post-processing went into it.
This is what makes me less and less interested in creating anything. I get it. It “protects” the creatives. But it really does shackle the Creative Commons. And it’s so easily perverted by those with the capital to fight (I get the implied hippocracy of my saying that when this specific situation is a giant corporation like Netflix facing down a lone photographer, and I am arguing that I don’t think the photographer in this instance has much of a case; but I really don’t… his image inspired the scene, but wasn’t used in the final product. Meh).
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There’s enough here for the plaintiff to make out a prima facie infringement case–meaning that he could show that absent some defense, the source picture was his copyrighted work. The copyright lies in the fixed expression, which—for photographs of nature—includes the selection of angle and lighting and other elements of photographic composition, but doesn’t include the arrangement of elements for which the photographer isn’t responsible.
So, imagine this was a situation where you had a pair of photographers both at the same spot, photographing the same formation at the same time. Each of them would have a copyright in his or her own photograph, and (theoretically, at least) neither would infringe the other. In that situation, the maker of a derivative work based on the licensed use of one of the photographs might be sued by the other photographer, who’d presumably use the similarity of the formation in the photo to make out the prima facie case. Then the case would turn to the maker of the derivative work showing that there was a second photo containing the same elements and that he used with the photographer’s permission, as a defense to infringement of the first photo.
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Look at the bottom edge of the cloud in the photograph, and the same bottom edge in the concept art. This is most certainly the same photograph. But the concept art wasn’t the final product; it was an early step in the creation of the final product.
Later the 3D graphic designers/animators got involved and ran with the look and the feel from the original concept art, but didn’t use the actual photograph… unless someone can turn up a still image of the cloud from the broadcast (not the behind-the-scenes show) showing that same angle and edges.
If that concept art hadn’t been shown on the behind-the-scenes episode, the photographer would have continued to just have the feeling his image had been used for inspiration.
If we made it possible for people to successfully sue over inspiration, everything creative would have to stop, or cautiously move forward in the hopes of earning enough money to cover the lawyers and lawsuits and still be able to pay rent.
Lawyers & Lawsuits
If that’s not a courtroom based RPG already, it should be.
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If this was upheld, it would be a chilling effect for the common and generic design practice of “Mood boards”
I’m not sure this is the case, as the article quotes the photographer as saying “I feel that once they use it in the documentary, then it becomes an official usage”. It reads like he’s objecting to the airing of the images, not their use in a mood board. That sounds fair enough - if it’s aired on Netflix then it has been sold to paying customers. If they reproduce it in a book, they’re selling it, and it’s reasonable to expect them to seek permission. If they don’t want to do that, the solution is not to make the concept art public (whether they’re selling it or not).
In the privacy of your own home, you can sample a Prince song and play around with it for as long as you like. But if you put that in a Youtube video and make it public, you can expect a knock at your e-door. Asking Netflix to do the right thing here is a call for parity.
I expect it’s entirely possible that this is just a series of blunders - the concept artists not expecting it to be made public, the producers not being aware the art used someone else’s work - and Netflix are likely to approach it all cautiously at first. But as the article points out, the show has previous form for using artists’ work without permission, so hopefully they’ll eventually do the right thing here. If it was my photo I’d be happy with suitable credit for any future airing or publication of the concept art. Because, you know, it’s my photo.
But none of that should have a chilling effect on the use of mood boards during production, and I don’t see that argument being made in the article at all.
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And that’s where things get sticky. Practically speaking, artists generally don’t need to worry about their inspiration boards being copyrighted because there’s no way for the infringed author to find out his work’s been used. Since it doesn’t show up in the final work, it’s kind of a no-harm-no-foul situation.
Here, though, not only did you have (almost certainly) copying and (definitely) a derivative work, but you also had a very public display of the derivative work. That’s three different flavors of infringement, and if I were a lawyer for Netflix on this, I’d be less concerned with trying to figure out how to make a fair use defense and more concerned with trying to reach an amicable settlement that doesn’t make my client look like a greedy art thief.
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So why is the behind the scenes show not a broadcast or production and is immune to copyright?
Again, not a lawyer and I did see that you are, so you’re coming at it this situation from a point of knowledge that I lack.
But the format shift from a static image to a moving image (speaking of the actual episode, and not the behind-the-scenes show that showed the concept art) that was inspired by his photograph, but didn’t use his photograph, doesn’t change the situation at all?
Everything is derivative of something. Everything has been inspired by something.
Reading the linked article, it seems he’s using the appearance of the concept art on a different broadcast as proof he was damaged by the original broadcast that doesn’t actually use his photograph. His grievance isn’t with the behind-the-scenes show and concept art; it proves his photograph was the inspiration for the cloud in the show.
Therefor, to me it seems like he’s claiming rights because he was the inspiration.
That’s worrying.
I’m not saying it is.
I’m saying that – as stated above in an earlier post – I don’t think he will have an easy time showing that he was damaged by Netflix using his actual photograph on a concept art board, and later broadcasting it.
But I’m not a freaking lawyer. I could be entirely wrong.
So take my position as though I’m on the jury instead. It’s going to be difficult to convince me that he has suffered damages from this particular use of his image.
Oh, to be clear—I don’t think he has much of a leg to stand on if he goes after the episode. A copyright in a photograph of nature is pretty thin as copyrights go. The copyrightable expression is in the angle, lighting, composition, and any post-production editing, not in the natural phenomenon itself.
That doesn’t change the likelihood, though, that he has a good prima facie case of copyright infringement in the derivative work that Netflix broadcast in the making-of feature.
As for damages, a copyright owner can always elect statutory damages. 17 USC 504( c ). Statutory damages for “all infringements involved in the action, with respect to any one work” are between $750 and $30,000. So, not a ton of money, but probably worth hiring a lawyer to write a letter about.
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Ok, I get that.
I just dont like the idea that the pic was only used for inspiration because it is clearly used in a production. I probably responded slightly off topic to your direction.
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Yeah, I expect cases like this an the improvement of TinEye will mean that concept artists will be required to list which images they purchased and used for their ideas, just in case the production firm decides to do a “making of” which shows off the art. Then they can send a standard release and compensation form to each creator with a couple of bucks and a promise of citation.
So from producer to concept artist: “OK, did you use any photos? Have the guy’s name? Fine, just enter it into the database just in case this gets popular enough for a ‘making of’.”
From producer to the photographer. “Hey, just to let you know, we are in the midst of doing a ‘making of’ and would like to show some concept art that included part of your photo. If you’re not happy with that, let us know and we will blur it out and not mention you. Otherwise we’ll go ahead and thank you in the credits.”
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How “identical” are these photos?
I think the Stranger Things image falls under transformative fair use.
see Cariou v. Prince
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They’re identical enough that the one on the right is only not infringement because an appellate court, on appeal after the artist who made it lost at trial, ruled that it’s a fair use.
That’s the problem with fair use. Procedurally, it’s an affirmative defense to infringement, and by the time you get a court to agree with you on it, you’re already out of pocket at least as many dollars as it costs you to get a reputable lawyer to draft a motion to dismiss.
Maybe in your universe, where common sense has no merit…
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If this were to go to trial the plaintiff should be required to submit a pixel by pixel comparison of the two pictures to prove identity.
