Author Topic: PaintMyPhoto - can they do this with a stock image? (Read 13010 times)

Jo Ann Snover · « **on:** June 16, 2011, 03:01 »

Google's image search turned up one of my beach pictures here.. Mine is center bottom row.

They offer a "painted" image to the customer. If the customer wishes to have a background replaced, they can pick from one of the images shown.

I know that someone who painted (or collaged) something with one of my copyrighted works couldn't claim copyright to the resulting work, but can they sell it? This seems a bit like the Obama Hope poster dispute (minus the arguing about which photo it was based on).

I'm fairly certain this was sold by iStock but now I'm independent, I doubt they'd look at the issue (and the image has already sold via Canstock, so it might be them).

This site doesn't look like it's going to be the Wal-mart of hand painted photos, but I wondered if using stock in this way was within the license terms.

Sean Locke Photography · « **Reply #1 on:** June 16, 2011, 06:58 »

I'd argue they need an items for resale EL.

Microstock Posts · « **Reply #2 on:** June 18, 2011, 23:48 »

Maybe u can email PaintMyPhoto what a normal license covers and what an EL covers.

bizair · « **Reply #3 on:** June 19, 2011, 01:41 »

All stock images are sold into a secondary use market, eg adverts, illustration, textbooks, blogs or other online, with most changed in some way such as cropping, adding text, or otherwise changing the look of the original. I don't see how the paintmyphoto use is really any different. We are selling to designers to use an image for a purpose other than image-for-image-sake use.

Sean Locke Photography · « **Reply #4 on:** June 19, 2011, 10:30 »

Quote from: bizair on June 19, 2011, 01:41

All stock images are sold into a secondary use market, eg adverts, illustration, textbooks, blogs or other online, with most changed in some way such as cropping, adding text, or otherwise changing the look of the original. I don't see how the paintmyphoto use is really any different. We are selling to designers to use an image for a purpose other than image-for-image-sake use.

There is a difference between using the content for promotional purposes (ie, to promote or advertise their business) and using the content straight up, or pretty close, to sell and make money. Across the boards, pretty much, micro is meant for promotional use. This is why ELs are required for tshirts, post cards, etc. And derivative paintings.

click_click · « **Reply #5 on:** June 19, 2011, 11:04 »

I feel very icky about this situation. In my understanding this would be considered derivative work and as it states at the US Copyright Office:

Quote

What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

See here: http://www.copyright.gov/help/faq/faq-definitions.html

Your image is knowingly used as a reference or template and I don't know what else is considered derivative work if not this, plus it's used commercially.

I'd call a lawyer.

TheSmilingAssassin · « **Reply #6 on:** June 19, 2011, 12:21 »

Quote from: jsnover on June 16, 2011, 03:01

Google's image search turned up one of my beach pictures here.. Mine is center bottom row.

They offer a "painted" image to the customer. If the customer wishes to have a background replaced, they can pick from one of the images shown.

I know that someone who painted (or collaged) something with one of my copyrighted works couldn't claim copyright to the resulting work, but can they sell it? This seems a bit like the Obama Hope poster dispute (minus the arguing about which photo it was based on).

I'm fairly certain this was sold by iStock but now I'm independent, I doubt they'd look at the issue (and the image has already sold via Canstock, so it might be them).

This site doesn't look like it's going to be the Wal-mart of hand painted photos, but I wondered if using stock in this way was within the license terms.

They can only sell it with a print licence. Have you sold any Print ELs for that image?

TheSmilingAssassin · « **Reply #7 on:** June 19, 2011, 12:27 »

Quote from: click_click on June 19, 2011, 11:04

I feel very icky about this situation. In my understanding this would be considered derivative work and as it states at the US Copyright Office:

Quote
What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

See here: http://www.copyright.gov/help/faq/faq-definitions.html

Your image is knowingly used as a reference or template and I don't know what else is considered derivative work if not this, plus it's used commercially.

I'd call a lawyer.

This isn't necessarily derivative work unless they claim copyright over it. All they're doing is using the background and painting an image over it. It would be the same if a designer purchased one of our images, whacked it on a business card with a fancy background from another contributor and sold the card. They can't claim copyright over the images but if they've purchased a print licence, they have permission to use and print it anyway they wish.

ETA.. and sell it of course.

click_click · « **Reply #8 on:** June 19, 2011, 12:34 »

Quote from: pseudonymous on June 19, 2011, 12:27

This isn't necessarily derivative work unless they claim copyright over it. All they're doing is using the background and painting an image over it. It would be the same if a designer purchased one of our images, whacked it on a business card with a fancy background from another contributor and sold the card. They can't claim copyright over the images but if they've purchased a print licence, they have permission to use and print it anyway they wish.

ETA.. and sell it of course.

You are right. However, there is no credit line whatsoever who the copyright owners are of the backgrounds given.

Furthermore, nowhere it is explicitly stated that those backgrounds are not owned by the company.

Look at these terms:

8. Proprietary Rights
You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by PaintMyPhoto, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any Content received through the site without the authorisation of the Content owner, except for uses permitted by law. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site including code and software, in violation of applicable copyright and other intellectual property laws.

You will retain ownership of the Content you upload to PaintMyPhoto. You hereby grant to PaintMyPhoto a royalty free, worldwide, transferable, nonexclusive, right and license to use such Content as PaintMyPhoto deems necessary to enable you to use the PaintMyPhoto service to create, produce, crop, publicly display, sell, distribute and purchase Products for so long as your Content remains uploaded to the site. PaintMyPhoto may sub-license the rights that you grant it in this section to a third party subcontractor for the purposes of producing your Products and providing the PaintMyPhoto service.

Tough stuff...

http://www.paintmyphoto.com.au/home/s/terms_and_conditions

TheSmilingAssassin · « **Reply #9 on:** June 19, 2011, 12:56 »

I don't really see a problem with that. They're not required to give us credit when they purchase an EL. It would be nice but there's no condition to do so in the contract. They're not claiming that those images are theirs, but they're saying they're copyright protected which is good enough.

I don't see a problem with the parts you've highlighted in red either. They're just asking the buyer to grant them permission to use and sell their image while the image is uploaded on the site.

I think as contributors we've become overly paranoid about our images. We find so many that are using unlicenced images, that we can't help question the ones that do the right thing. If this mob purchased an EL then they have the right to do what they're doing. The question is, have they purchased an EL? If that beach image was part of my port it would be easy to tell. But for someone with a huge port as jsnover, it's probably almost impossible to tell. This is where the biggest problem lies. I understand that most standard RF licences don't need policing, but when we sell an EL, the buyers details should be given to us along with how they intend to use the image. I can't understand how a contract exists between the buyer and the seller yet all details are hidden from the seller. I find that so strange.

madelaide · « **Reply #10 on:** June 19, 2011, 13:25 »

In my understanding, an EL is required for this usage, and there are even limits regarding the number of allowed copies sold (which is basically out of control, but neverthess is part of the license terms). Am I wrong? If this image never sold as EL, then the company is not allowed to use it.

Jo Ann Snover · « **Reply #11 on:** June 19, 2011, 13:44 »

This image has never sold an EL, so if one is required, they don't have it.

I guess this seems to me more like printing an image on a T shirt than printing an image in a marketing brochure, but in truth the background isn't really the main value in what they're selling. I don't see this as being a huge ripoff in practical terms given that they've got an army of low paid people churning these portraits out and the bulk of the effort on their part is "painting" the subject - not my photo.

If they were just selling the painted beach shot, I think it'd be much clearer that what they were selling was my copyrighted work, albeit gussied up a bit. As it is, they just need to give the buyer an idea for a different background. If you look at the example painting with a cloud background, they don't even closely follow the cloud outlines from the photo in the painted piece.

Honestly, given the paintings, I'd rather they didn't credit me

bizair · « **Reply #12 on:** June 19, 2011, 21:44 »

Goodness me boys and girls. A lot of what has been said is nonsense.
Given much of the debate one would have to think it we are holding up ourselves and our work to be overly precious.
I'll wear the flames but it has to be said. We are not producing art here in any manner or means with, IMO, a very few exceptions. We are simply producing commodities. And stock in particular is not highly skilled activity. Photography requires skills of course, but nowhere near as much skill and imagination as many, many other trade or craft. Yes, there are exceptions, but the vast majority of us never approach that level of achievement.
We produce our widgets so that designers can use them to achieve other aims. If one designer has found a novel way to use the widgets, provided it falls arguably within the license for that widget then what are we worried about?

Sean Locke Photography · « **Reply #13 on:** June 19, 2011, 22:37 »

Quote from: bizair on June 19, 2011, 21:44

We produce our widgets so that designers can use them to achieve other aims. If one designer has found a novel way to use the widgets, provided it falls arguably within the license for that widget then what are we worried about?

Pretty simple. It doesn't fall in the license. If you don't care about whatever it is that you create, Mr. Anonymous, fine, but don't think other people don't.

click_click · « **Reply #14 on:** June 19, 2011, 22:44 »

Quote from: bizair on June 19, 2011, 21:44

Goodness me boys and girls. A lot of what has been said is nonsense.
Given much of the debate one would have to think it we are holding up ourselves and our work to be overly precious.
I'll wear the flames but it has to be said. We are not producing art here in any manner or means with, IMO, a very few exceptions. We are simply producing commodities. And stock in particular is not highly skilled activity. Photography requires skills of course, but nowhere near as much skill and imagination as many, many other trade or craft. Yes, there are exceptions, but the vast majority of us never approach that level of achievement.
We produce our widgets so that designers can use them to achieve other aims. If one designer has found a novel way to use the widgets, provided it falls arguably within the license for that widget then what are we worried about?

I respectfully don't agree with some of your statements.

While you may pop out dozens of "unskilled" images on a daily basis, some of us do put a significant amount of time from planning, shooting and editing into our work and I for myself may take days to create one illustration that has to make me back the money in time I spent on it. I think there are indeed some skills involved.

Just because our work might not be considered art does not automatically mean that we cannot enforce our copyright.

I do admit that plenty of submissions, I dare to say over 70% are "uninspired" and weak concepts that mostly are accepted due to the fact that they are ok in technical respects.

Now back to the topic of copyright infringement or not. As long as the proper license has been acquired I don't give a rat's a$$ if they credit me or not. This site looks dodgy and have my doubts that those images are licensed properly. Not one of mine is included, therefore I will never find out if they are properly licensed. If one of them was mine, you bet that I'd find out, just because of the fact that I make a living off of this.

If I'm being made aware of a site that has my images, I'm on it. I don't live in la-la-land and know very well that we only see the tip of the iceberg and that thousands of infringements are happening without us knowing. But I sure won't look the other way once I see it happening.

That's my 2 cents. What other contributors are doing to protect their copyright is their cup of tea.

TheSmilingAssassin · « **Reply #15 on:** June 19, 2011, 23:24 »

Quote from: bizair on June 19, 2011, 21:44

Goodness me boys and girls. A lot of what has been said is nonsense.
Given much of the debate one would have to think it we are holding up ourselves and our work to be overly precious.
I'll wear the flames but it has to be said. We are not producing art here in any manner or means with, IMO, a very few exceptions. We are simply producing commodities. And stock in particular is not highly skilled activity. Photography requires skills of course, but nowhere near as much skill and imagination as many, many other trade or craft. Yes, there are exceptions, but the vast majority of us never approach that level of achievement.
We produce our widgets so that designers can use them to achieve other aims. If one designer has found a novel way to use the widgets, provided it falls arguably within the license for that widget then what are we worried about?

ROFL "Widgets".

Wow, what a crappy approach you take over your own work. If you don't respect your own work, you couldn't expect anyone else to to, surely. Please don't speak on behalf of everyone else when you say "our work is not art". Who knows, maybe your work is rubbish and you produce work in a short time without giving it too much thought but I consider a good portion of my work as art. I am an artist (oil on canvas) and I try to apply my knowledge and experience to creating illustrations. I value my work and if anyone doesn't have the decency to purchase a licence at dirt cheap prices and steals from me, I won't write it off with an "oh well, it's just microstock". That's crap!

TheSmilingAssassin · « **Reply #16 on:** June 19, 2011, 23:36 »

On a side note, leaf, what's going on with your filter? I wrote "that's bullsh1t" and it converted to "that's crap". Now I don't know about you but I don't see how bullsh1t is more offensive than crap. Is a turd specifically from a bull worse than turds in general? What if I wrote "that's elephantturd!" or "that's monkeypoo!" or "that's horsemanure!" or "that's catfeces!", will these be filted too?

Sorry I just don't see how the word "bullsh1t" could offend anyone.

I would like either an explanation or the filter changed to "monkeypoo" for shits and giggles

EDIT: Ok this is very interesting. "shits" is allowed? I've had "crap" replaced with "crap" before. Don't mind me I'm just going to save this to test the filter some more.

EDIT SOME MORE: I'm baffled now. One would think that "shits" in plural, would be worse than a single one. I would cringe a tad more over a pile of turds than just one. It might be just me though

Ok folks, carry on.

Microstock Posts · « **Reply #17 on:** June 19, 2011, 23:57 »

Quote from: pseudonymous on June 19, 2011, 23:36

On a side note, leaf, what's going on with your filter? I wrote "that's bullsh1t" and it converted to "that's crap". Now I don't know about you but I don't see how bullsh1t is more offensive than crap. Is a turd specifically from a bull worse than turds in general? What if I wrote "that's elephantturd!" or "that's monkeypoo!" or "that's horsemanure!" or "that's catfeces!", will these be filted too?

Sorry I just don't see how the word "bullsh1t" could offend anyone.

I would like either an explanation or the filter changed to "monkeypoo" for shits and giggles

EDIT: Ok this is very interesting. "shits" is allowed? I've had "crap" replaced with "crap" before. Don't mind me I'm just going to save this to test the filter some more.

EDIT SOME MORE: I'm baffled now. One would think that "shits" in plural, would be worse than a single one. I would cringe a tad more over a pile of turds than just one. It might be just me though

Ok folks, carry on.

I'm just testing the filter to see what comes out. Ok here we go. Politicians tend to speak through their backsides. They will say any kind of fecal matter, in order to get votes. But once they get into power, they forget about what they promised and defecate on the people who voted them in.

Ok, I'm posting this now, I used the some really bad swear words. Lets see how it turns out.

TheSmilingAssassin · « **Reply #18 on:** June 20, 2011, 00:08 »

I found your post to be terribly offensive, not to mention unprofessional. The filter is not working as effectively as it should. Your post should have read something like:

"Politicians tend to speak through their hindquarters. They will say any kind of excrement, in order to get votes. But once they get into power, they forget about what they promised and evacuate on the people who voted them in."

leaf, please sort this out.

PS. sorry jsnover

Karimala · « **Reply #19 on:** June 20, 2011, 02:14 »

Back to the original topic, please....

Quote from: jsnover on June 16, 2011, 03:01

Google's image search turned up one of my beach pictures here.. Mine is center bottom row.

They offer a "painted" image to the customer. If the customer wishes to have a background replaced, they can pick from one of the images shown.

I know that someone who painted (or collaged) something with one of my copyrighted works couldn't claim copyright to the resulting work, but can they sell it? This seems a bit like the Obama Hope poster dispute (minus the arguing about which photo it was based on).

I'm fairly certain this was sold by iStock but now I'm independent, I doubt they'd look at the issue (and the image has already sold via Canstock, so it might be them).

This site doesn't look like it's going to be the Wal-mart of hand painted photos, but I wondered if using stock in this way was within the license terms.

Microstock Posts · « **Reply #20 on:** June 20, 2011, 02:33 »

Quote from: Karimala on June 20, 2011, 02:14

Back to the original topic, please....

Quote from: jsnover on June 16, 2011, 03:01
Google's image search turned up one of my beach pictures here.. Mine is center bottom row.

They offer a "painted" image to the customer. If the customer wishes to have a background replaced, they can pick from one of the images shown.

I know that someone who painted (or collaged) something with one of my copyrighted works couldn't claim copyright to the resulting work, but can they sell it? This seems a bit like the Obama Hope poster dispute (minus the arguing about which photo it was based on).

I'm fairly certain this was sold by iStock but now I'm independent, I doubt they'd look at the issue (and the image has already sold via Canstock, so it might be them).

This site doesn't look like it's going to be the Wal-mart of hand painted photos, but I wondered if using stock in this way was within the license terms.

They need an EL, we need to sue their backsides.

bizair · « **Reply #21 on:** June 20, 2011, 04:00 »

Oh dear.
Where did I mention that photography is unskilled. Of course it is a skill, and I noted that. I simply said that it is not as high a skill as many here seem to think. Judging by the way many of us talk about this vocation an outsider could be forgiven for assuming that many of us think it's akin to rocket science or brain surgery. It simply is not.
And where did I state that I do not respect the work of others or myself. We can respect the effort or work of oneself or others without needing to put it on a pedestal. Likewise, I didn't suggest that we are "pooping" out work.
The amount of effort put into analysing (what may or may not be) a rather trivial transgression of a licence beggars belief.
And as to "suing their backsides" - a silly statement if ever I heard one. Have the people who throw those terms around any idea of the risks faced in litigation? Losing litigation is sell your house stuff. To suggest suing over such an issue is not even a consideration in risk management terms.
The intention in my comments is simply to bring a dose of reality to our endeavors. I repeat again, we are producing commodities - hence the widget analogy.

Noodles · « **Reply #22 on:** June 20, 2011, 08:02 »

Quote from: bizair on June 20, 2011, 04:00

Oh dear.
Where did I mention that photography is unskilled. Of course it is a skill, and I noted that. I simply said that it is not as high a skill as many here seem to think. Judging by the way many of us talk about this vocation an outsider could be forgiven for assuming that many of us think it's akin to rocket science or brain surgery. It simply is not.
And where did I state that I do not respect the work of others or myself. We can respect the effort or work of oneself or others without needing to put it on a pedestal. Likewise, I didn't suggest that we are "pooping" out work.
The amount of effort put into analysing (what may or may not be) a rather trivial transgression of a licence beggars belief.
And as to "suing their backsides" - a silly statement if ever I heard one. Have the people who throw those terms around any idea of the risks faced in litigation? Losing litigation is sell your house stuff. To suggest suing over such an issue is not even a consideration in risk management terms.
The intention in my comments is simply to bring a dose of reality to our endeavors. I repeat again, we are producing commodities - hence the widget analogy.

You miss the point entirely. People only come here to whinge. haha

click_click · « **Reply #23 on:** June 20, 2011, 08:27 »

Quote from: bizair on June 20, 2011, 04:00

Oh dear.
Where did I mention that photography is unskilled. Of course it is a skill, and I noted that. I simply said that it is not as high a skill as many here seem to think. Judging by the way many of us talk about this vocation an outsider could be forgiven for assuming that many of us think it's akin to rocket science or brain surgery. It simply is not.
And where did I state that I do not respect the work of others or myself. We can respect the effort or work of oneself or others without needing to put it on a pedestal. Likewise, I didn't suggest that we are "pooping" out work.
The amount of effort put into analysing (what may or may not be) a rather trivial transgression of a licence beggars belief.
And as to "suing their backsides" - a silly statement if ever I heard one. Have the people who throw those terms around any idea of the risks faced in litigation? Losing litigation is sell your house stuff. To suggest suing over such an issue is not even a consideration in risk management terms.
The intention in my comments is simply to bring a dose of reality to our endeavors. I repeat again, we are producing commodities - hence the widget analogy.

I never said "poop" I said "pop" as in rapidly producing images in a row.

bizair · « **Reply #24 on:** June 20, 2011, 19:12 »

Quote from: click_click on June 20, 2011, 08:27

I never said "poop" I said "pop" as in rapidly producing images in a row.

You are correct of course, I crossed wires with the reference to excreatment comments in the following post to yours.

I'll amend the sentence to "Likewise, I didn't suggest that we are "popping" out work.". Seems to be a slight inflection on the same point though.

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Author Topic: PaintMyPhoto - can they do this with a stock image? (Read 13010 times)

Jo Ann Snover

Sean Locke Photography

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bizair

Sean Locke Photography

click_click

TheSmilingAssassin

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Jo Ann Snover

bizair

Sean Locke Photography

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TheSmilingAssassin

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Karimala

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