Copyright infringement - 'apeing' another photo...

[peter_f]

Hi guys n gals,

 

I've taken a commission to photograph some console accessories for a

3rd party accessories manufacturer. It's for their packaging and

(for obvious reasons) they want to 'ape' the style of the images on

the principal manufaturer's packaging. I guess this is common enough

practice.

 

However, my obvious concern is copyright infringement - where do I

stand on that?

 

The shots they want are fairly standard 'white background' product

shots, and so I guess there can't be too much of a problem - or am I

going to land myself in serious trouble and have some multinational

suing my ass in court?

 

Any advice,

 

PF

[maury_cohen]

Though it might be common that doesn't make it right.

 

Where do "you" stand on this? That only "you" can answer.

 

It's more likely that the other photographer would sue you than the company; unless they own all rights to the image. I don't know how likely even that lawsuit would be.

[ellis_vener_photography]

What follows is not to be construed as legal advice. 1.) I'm not a lawyer. 2.) Even if I was a

lawyer I'm not YOUR lawyer.

 

 

I would insert into the terms and conditions portion of your contract with your

clientlanguage that makes surethey indemnify you against any such legal action.

But if you are simply photographing your client's products and not directly copying a shot

done by someone else I don't see what you have to worry about. No one has been able to

copyright a lighting technique as basic as using a broad light source over a product on a

white seamless background.

[michaelkh]

Ellis is right, here - you don't need to be a lawyer or know a lawyer to come to the

conclusion that you should insist your client indemnifies you to the extent the law allows.

 

However, then you are left with two problems: 1) does the law allow them to indemnify

you at all, and 2) does the job require you to pass the point where your own ethics should

prevent you from going?

 

For 1), see a lawyer and then talk to an indemnity insurer.

 

For 2), sit down with your favourite beverage and have a think.

[michaelkh]

Hm, I seem to have scrolled past what Maury said without noting it. So:

 

What Maury said.

[dai_hunter]

You want to read this discussion of the legal position of "Scenes a Faire"

 

http://www.ivanhoffman.com/scenes.html

 

Aping is not necessarily infringement, only slavish copying would be.

 

Hunter

[bert_krages1]

This is a gray area that could possibly expose you to liability and consulting an attorney would be appropriate. There are cases that cut both ways when it comes to images that copy the feel of another image when the intent involves the commercial use of the the feel. I don't see any reason why the client could not indemnify you but keep in mind that an indemnity agreement is only as good as the resources of the indemnitor.

[bill c.]

Peter-- Getting the fine print out of the way first, I'm not a lawyer, etc. I'm just going to tell you what I would do.

 

First, keep in mind that in this country (USA) pretty much anybody can sue you anytime for anything. Whether they will win or their suit would be thrown out of court is another matter, of course. Then again, it's usually the legal fees that do one in.

 

However, if the intent was to make the presentation of your client's product look like the presentation of the primary manufacturer's product, then I would see absolutely no problem whatsoever. As long as I am not making a photograph so similar as to be identical, it's not really a problem, especially if I'm using common lighting techniques and simple backgrounds.

 

Also, it is possible (and you would have to check this out) that the primary manufacturer purchased the copyrights to the original images. Unless the manufacturer sells the use of the images to the dealers-- and I have NEVER heard of such a thing, they always give them away or even give credit to the dealer for use of them-- then the copyright holder would have no fiduciary loss on the matter.

 

But in this case, I would not hesitate to simply simulate a lighting style. At any rate, it will probably be moot, since unless you have the exact same equipment and happen to hit on the exact same techniques, your images will undoubtedly be significantly dissimilar to the originals.

 

That being said, there was one situation back in the 1980's where a photographer copied a stock image of a woman sitting on a diving board, shot from above, with a deep blue pool behind her. Basically, what happened was that the art director and the photographer wanted to go to the Bahamas, so they convinced the client that that was the only place they could get the look they wanted (which was quite ironic, since the original was shot in New Jersey!).

 

Unfortunately, they did too well. They found a model who had a profile almost precisely like the the original, and got the color of the water exactly right. The original model saw the image, and screamed at the original photographer, as he had promised to split any sales proceeds in lieu of a modeling fee. He saw the copied images and successfully sued the offending photographer.

 

However, courts have been shooting down this kind of lawsuit lately.

 

Your mileage may vary. Consult a real lawyer if you have real misgivings. Offer not binding in all states. Have a nice day.

 

-BC-

[craig_gillette]

I think a "real lawyer" actually chimed in. FWIW, I think it's the whole assembled catalog page, site, packaging, etc., that would be the problem. How or if you can participate and yet isolate yourself from the fall-out, if it's a deceptive effort, that's the question. OTOH, if they just want pictures that show the product as well as a well shot catalog/site, then I don't think that's an issue at all. But if your nose is telling you there's a stink, it's worth checking it further?