@spetrovits
I don’t think this falls under transformative use. This doesn’t add anything new to the subject matter or change the character of the depiction - it is just a 3D form of the situation depicted in the 2D picture; not very transformative.
That said, there are other reasons it may be legally fine. As @kanadanmajava pointed out, it was an event in public with no presumption of privacy, so while the photographer may own rights to the picture, the event itself is probably in the public domain. (Also - I am not a lawyer, so there are possibly (probably?!) nuances I don’t see)
As you’ve also said, I understand the photog’s frustration. Without her timely pic, the moment would not have been immortalized or made popular, and the model-makers wouldn’t have the impetus to make and sell their product. Yet, while they hopefully have a debt of gratitude, they technically don’t owe her anything monetarily.
In the UK there is the rule that you can’t claim IP for a depiction of something that exists ‘in the public realm’, i.e. nobody can own the rights to photograph the Eiffel Tower.
I think that this would apply here too?
I believe that that applies to depictions of the monuments, etc. themselves and not to reproductions of photographs thereof.
In other words, you can take a picture of the monument, etc. or paint the monument, etc. itself, but you can’t copy a picture or painting of the monument, etc.
Hmm… I guess. I was thinking that the runner and the boars are in the public realm rather than in, say, the photographers studio, and that the spectacle took place without the runner being hired as a model beforehand. But true, it’s hard to argue that the model makers could have known about the incident without the photo being taken.
Seeing as the photographer just got lucky, and that model makers aren’t going to be making huge amounts from this, it’s OK in my book. But fair enough, they’re probably in a grey area at best.
I think transformative use applies, because although the pose was made to resemble the man in the photo, there wasn’t more effort to make the man look like the original. Nor the boar. Nor the bag. And it can be viewed from all angles, rearranged as they are separate pieces, and so on.
But my gut tells me this is all moot, anyways. I think someone from BILD went to the original photographer hoping to stir up drama more than the photographer actually being pissed. I don’t get the indication that litigation is imminent.
It is the addition of the inflatables that did it for me.
You can learn a lot about a peoples by how they describe things. “Wild Schwein Alarm” tells you everything you need to know about Germany and stolen laptops
A widely accepted definition of “transformative use” is a use that adds something new, with a further purpose that does not substitute for the original use of the work.
In this case the 3D figurine would be unlikely to be used in the same way as the photograph. For example, a model train set builder wouldn’t just stick a printed copy of the photo into their scenery.
The only thing the photographer has copyright over is the composition and timing. The photographer did not create the mise-en-scène, which is what the 3D print is of, and has no copyright of it. Facts cannot be copyrighted, at least not in the US.
I think it is totally fair game - but I also think in a copyright maximalist society, enough money paid to lawyers and enough forum shopping could result in the photographer winning a copyright suit, even if I think that is the wrong interpretation of copyright law.
The privacy issue is a different matter because Germany has very strict privacy laws regarding photos of individuals in public that are not in a group. Without permission I don’t think the photographer could have published the photo in the first place, but I don’t know how that translates to the 3D print.
