NikonGear'23
Images => People, Portraits, Street, PJ & Cityscapes => Topic started by: Rick Waldroup on October 26, 2017, 03:11:29
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This is a new project I have been working on for a while now and I just recently started posting the photos on my website. They are actual photos shot of various television screens. The images are then highly manipulated by me in post processing and these are some of the results. The images come from TV commercials, TV shows, and various movies shown on TV. It has been an extremely fun project to work on, mostly because this type of work is something completely different than my normal PJ, documentary, and street work.
In the past few weeks I have been approached by three different people wanting to buy prints of some of the images. I have turned those requests down, because frankly, I am not sure about the ethical or moral concept of what I am doing. I am shooting images off of TV screens, images that were not mine originally, and then heavily editing those images to create the artistic vision I had in mind when I first saw the images. Also, some of the images are not so heavily manipulated (not shown here) and you can tell exactly what, where, or who the images are of.
The images are presented on my website without titles or captions. The images stand alone.
Take a look, and please, discussion and comments are most welcome. Thanks.
(https://nikongear.net/revival/proxy.php?request=http%3A%2F%2Fwww.rickwphotography.com%2Fimg%2Fs2%2Fv52%2Fp2587820155-5.jpg&hash=be333edf9573091780d89fd8d9e01f959f2daf1a)
(https://nikongear.net/revival/proxy.php?request=http%3A%2F%2Fwww.rickwphotography.com%2Fimg%2Fs11%2Fv30%2Fp2523290327-5.jpg&hash=f474783565af779bfb18f6c3fce112b418663095)
(https://nikongear.net/revival/proxy.php?request=http%3A%2F%2Fwww.rickwphotography.com%2Fimg%2Fs12%2Fv171%2Fp2449178305-5.jpg&hash=052d9c6358b35f9c1aa904939a49ea05cc5e0ff9)
(https://nikongear.net/revival/proxy.php?request=http%3A%2F%2Fwww.rickwphotography.com%2Fimg%2Fs5%2Fv124%2Fp2449178295-5.jpg&hash=96c14f7f66334bec3417b91d140305861b313f51)
(https://nikongear.net/revival/proxy.php?request=http%3A%2F%2Fwww.rickwphotography.com%2Fimg%2Fs%2Fv-2%2Fp1687739649-5.jpg&hash=cd853e017aa24a56c61190b7f1000657fac2f43d)
To see the entire set of images so far, go here http://www.rickwphotography.com/p890079861#h91fb7eb7 (http://www.rickwphotography.com/p890079861#h91fb7eb7)
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I'm no lawyer and I dare not give any advice that could even be hinted in the legal realm. If you do wish to pursue selling any of them, I do recommend consulting a good lawyer to get the best possible advice.
SO...I will just comment on the images and project itself.
I like the images, there is something about them that evokes an emotional response....kind of like draw artwork might do. I enjoyed viewing them. Thank you for sharing.
I'm a big proponent of personal projects. I do at least one per year. Stuff that I want to do, just for me. Sometimes I share it, like my Scene In Windows project I did a while back. Personal projects are a way to help us grow and find new and interesting avenues to enhance our other aspects.
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Thanks, Andrew. That is exactly what I am looking for.
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I did a similar project in the pre digital, analogue days (late 70's). I sold a few prints then almost by accident, and have no regrets.
I still took shots off the television on occasion until a couple of years ago. I now no longer have a TV so my project has come to an end. Except yesterday I took a shot of a television image in a bar. Thinking about it I kind of like the idea, and gives me another excuse to go to the pub.
As you may guess I would have no moral or ethical issue with your project. But I have no idea what the legal implications are. I doubt it would of stopped Andy Warhol making a buck.
Cheers
edit: I forgot to say, the second image was very strong in the set. Very interesting series of images.
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Ernst Haas, Lee Friedlander, Art Kane, and Stephen Shore did it, so you're in good company.
My amateur legal judgement: You are safe.
But read these infos on Fair Use in appropriated art:
https://fairuse.stanford.edu/overview/fair-use/four-factors/ (https://fairuse.stanford.edu/overview/fair-use/four-factors/)
https://fairuse.stanford.edu/2014/12/22/much-photo-need-alter-avoid-copyright-infringement-hint-cheshire-cat/ (https://fairuse.stanford.edu/2014/12/22/much-photo-need-alter-avoid-copyright-infringement-hint-cheshire-cat/)
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very interesting work and broader topic.
First, the idea is great, different and well outside the box (no pun intended). It can make for an interesting, unique and exciting project. The results are visually pleasing and Mongo suspects, pleasing to you as the artist creating them. Mongo has no ethical dilemma.
Secondly, You add a deal of your own manipulation/work to the screen shots. There is no doubt that you have produced the finished product provided it is sufficiently different to the original screen shot. However, at the same time, it is clear that the "seed" image or a part of the final image also contains someone else's work to a varying degree. Using such work for your own pleasure. Again, no ethical dilemma so far.
Thirdly and last, selling the completed work. Mongo looks at this as having , essentially, two main components. The first is the ethics of , say, selling and making money from the completed works per se; and certainly, if done so without even a credit mention of the "other contributors' work in the finished product. Secondly, it is the potential legal ramifications of doing this i.e using/modifying original work without permission, selling partly original modified work without permission and any income derived therefrom. Mongo does not propose to go into the last element mentioned here - that is for someone else, if at all. The mention of it is only meant to flag this as a consideration in due course.
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I want to thank everyone for their comments. It is very, very helpful. And thanks for those links, pluton.
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One issue is copyright. In the US, fair use of an existing work is not a breach of copyright. There are four factors that determine if a use is fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The key factor is normally the first. You are using an existing work to create a new work. To make using an existing work to create a new work fair use the use has to be "transformative". It is not enough just to alter the old work, you have to add "something new, with a further purpose or different character, altering the first with new expression, meaning, or message". It is worth looking at the recent landmark case of Cariou v Prince (https://cyber.harvard.edu/people/tfisher/cx/2013_Cariou.pdf) to get an idea of what "transformative" means in practice.
It is hard to see that you could have any trouble with any of the other criteria.
Another issue is what is called "false light" or "passing off". This is when you use a person's image or an image in a way that carries an implication they object to. The implication does not have to be actually derogatory. An example is using someone's picture in an advertisement: they can sue just because people are likely to think they agreed or have some association wit the product or service. Captions often cause trouble, if they use swear words, eg: the subject can sue because people might think they are a person who uses swear words.
This is especially likely with celebrities, because US courts have created an analogy between a celebrity's image and a trade mark (no, really, they have). In that context, it would be worth reading James "Jim" Brown v Electronic Arts (https://www.eff.org/files/brown_v._ea_-_ninth_circuit.pdf). EA used Brown's likeness in one of its football simulation games, and he sued. Brown lost, because for expressive works, which the court said includes computer games, the trademark is not infringed unless its use has no relevance whatever to the expressive purpose, or it is used in a way that explicitly misleads the viewer as to the association between the trademark owner and the creator of the work. So as long as you don't imply that these people agreed to be part of your works you should be in the clear.
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Thanks so much for that detailed response, Les. In fact, when I was first approached by someone wanting to purchase a print, one of the first things I thought of was the Richard Prince case.
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What do you guys think about me putting a title on each shot which details where the original image came from? As an example, the first shot in this series I posted is a very brief scene from the movie, Alien. The second shot in the series is another very brief clip which came from the movie, Planet Terror. The way that I manipulated the images, I doubt if many people would be able to tell where the scenes originally came from.
When I first started this, my original idea was to not provide any info at all about the photos- to just simply let them stand as works of art. But now, I am thinking maybe that is not the best approach? Any ideas or thoughts about the matter is much appreciated.
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To me, this project is a visual version of Musique Concrete from around the mid 20th century or the sampling by DJs and Hiphop guys starting from the 90s. And, of course, I'm so intrigued!
Frankly speaking, #3 and the last images with the scanning line are less interesting, because I remember I've seen photographs of similar concepts in the past (maybe the ones by some photographers Keith mentioned?).
#1 and #4 are my favorites in the set posted here. The deformation and the moire in #4 are very effective.
I can't say anything for sure about the legal stuff. So long as the owner the copyright and the portrait right are OK, there should be of no problem of publishing them or selling prints.
That said, clearing copyrights and portrait rights could be infinitely difficult. I have translated for the promotion of a publisher who bought the copyright of the entire series of "Ed Sullivan Show" and released the four shows with the Beatles appearing on them. In order to illustrate not only the performances of Fab Four who visited the U.S. for the first and the second time but also the whole atmosphere of the time, the publisher decided to include the footage of all other performers appeared on the same shows and even the commercials. So, he had to clear all the copyrights and the portrait rights of "every" persons appearing not only in the show but also in the commercials! He said that the clearing these rights was the hardest part of the project and it had taken two years to complete the legal work. Wow!
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As for the titles, it may depend on how you want to present your images. If you are to present them as abstract images, you wouldn't need to mention the original movies or TV program in the titles and you could title them in the completely different contexts. If you are to publish them as the presentation of one of the methods for your image making, it could be rather interesting to disclose where they came from in the titles.
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Ethical and Moral goes back to your personality and society canons.
Legal: Why would you want to wade in a legal nightmare?
You are using copyrighted stills of TV or Film footage for commercial purpose. Not withstanding the graphic and artistic value of the altered images, which in fact has been and is being done ad nauseam, you are putting yourself in jeopardy and easy food by hungry lawyers.
The question is: How much is it worth it to you to go to all this trouble when the artistic value is exhausted and the legal value is shining?
Surely it is not the money. Maybe the titillating effect of threading on the thin line of the law or plain vanity.
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Thanks, Akira and Ethan, for the comments.
The last image is the very first one of these I did, back in 2015. I was fascinated by the way it looked when I finished working on the image and that is when I decided to do more of these. Akira, sometimes the scan lines are much more pronounced in the images than at other times. I have also incorporated surrounding window light in some of the photos to get more distortion into the images.
Ethan, I am not sure why I started the project or why I continue with it. You are right that money has absolutely nothing to do with it. I simply like the way the images look. I have no commercial aspirations for the images at all.
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I wish you hadn't mentioned the movie title. (I liked it better when I had no idea what I was looking at!)
Now it's on the interweb, which means it's searchable. Oops.
The Hollywood studios are perpetually on the lookout for unauthorized copying/piracy.
Amateur Opinion, again:
I doubt this would register on their radar, and you may be on totally legal ground, but....
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Keith, I agree about using titles for the images. I tossed that out there, seeking opinions about it. I think the images stand alone just fine and as mentioned before, they are so heavily manipulated that knowing the source of the original image is probably meaningless.
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I feel the abstraction is high enough to make it your own work!
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When I first started this, my original idea was to not provide any info at all about the photos- to just simply let them stand as works of art. But now, I am thinking maybe that is not the best approach? Any ideas or thoughts about the matter is much appreciated.
Remember that for it to be fair use you have to establish a new artistic purpose or meaning. That would be easier if you make no reference to the original, unless your new purpose or meaning is a comment on the - eg - role of the alien in popular culture.
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Thanks, Frank and Les, for the comments.
Les, your advice is very much appreciated.
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I'd be inclined to show the complete TV. That would probably make the image fair use.
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Rick, Just noticed this ....https://torrentfreak.com/cbs-sues-man-for-posting-image-of-a-59-year-tv-show-on-social-media-171030/
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Thanks, David and Bez, for the comments.
That was an interesting article, Bez. Thanks for the link.
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The photos above look like fair use to me.
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New to this site. A 40 year professional photographer and a licensed attorney specializing in Copyright, Trademark and Licensing (the softer side of Intellectual Property).
Your title alone speaks of good common sense instincts but I wanted to take a moment to highlight several writers who analyzed your legal risks under the guise of Fair Use.
17 US Code, Section 107 Limitations on exclusive rights: Fair Use is a defense available to those accused of copyright infringement. In order to claim the defense you first have to admit that you did, in fact, infringe. Then the four factors within the law, which are very specific, are carefully analyzed with regard to your unique situation and set of facts. One thing is for certain - if you accept money for your work none of the factors apply and the defense is not available to you.
That's the bad news.
The good news is that you can continue your study but you should do it privately. You should not post your study for public viewing on sites like this or your professional web site.
I appreciate that you took the time to ask the question but , if it were me, I would take the series down and only show it to friends and colleagues over a cup of coffee in my home and I would not sell any image.
Now for the disclaimer: I'm not your lawyer. We do not share an attorney/client relationship. My email is in the form and spirit of educating photographers in the often misunderstood application of the Fair Use defense.
I found your photos on your professional web site rich and full. Your clear understanding of black and white photography is evident. Great work there.
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Robert, I want to sincerely thank you for taking the time to analyze the situation and for posting your remarks. For the past couple of weeks, I have seriously been thinking about terminating the project. While it has been great fun creating the images, I have always had reservations about the project going forward.
And thank you for the very kind words about my work.
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You have passion for this unique art form which you created. Please do not abandon you passion. There is a rather simple solution you may want to try...you wrote that the first and last photo are your favorite in the series you posted here.. I could be wrong but I assume they come from the same movie or television program. The cure would be to locate the holder of the copyright to the images, write them a letter and ask for permission to display their image and your artistic interpretation on your web site (you won't be able to sell them but you may be able to display them). In the same letter you may want to ask them how they want their attribution to appear.
The worst that they can say is no but they also might say yes because artists seldom ask permission.
Permission + attribution cures many ills within copyright. I have found that a letter asking permission is usually the beginning of a great relationship.
If the answer is yes then consider sending a photo of your interpretation of the image with their attribution prominently displayed somewhere on the front.
Believe me, this will not be easy but a worthwhile endeavor and if you're successful then no one can tell you you have to remove the photo from public view and you'll have one interesting story to tell. Start your research at the Library of Congress. They are very helpful if you tell them that you wish to avoid any infringement. The Library of Congress in Washington DC holds the copyright holders information which is available to the public.
Think about it. I've written letters and been successful and I've written letters and been unsuccessful but I've always made a friend in the process however it turned out. Best of luck to you and please do not abandon your passions. Sincerely, Robert
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e, the first shot in this series I posted is a very brief scene from the movie, Alien.
Ahhh, John Hurt?
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Colin, it is actually Ian Holm who played Science Officer, Ash.