Copyright law is not, fundamentally, about financial damage. It is about giving the creator of the work the right to decide how it is used. They can sell it, they can give it away for free, they can enjoin others from selling it, they can do what they want. But the decision is theirs. Outside of the very limited provisions for Fair Use and Work for Hire, you need permission from the creator of a work to use it for your own ends. That's the whole thing in a nutshell.
—Ctein, in the comments to yesterday's post
So it's one thing if somebody who is apparently well-intentioned and sympathetic messes with a famous photographer's best-known, most iconic, but half-century-old image. What about if some big corporation takes an unknown recent (2009) image from a little-known photographer and uses it without permission?
That's what happened to Chris Devers. On the left, below, is his photo "Old Jaguar E-type sports car: front view (close)." The Gap apparently used the photo on the gray pumice versions of the "Thermal body double" onesie (SKU #785589) and the 2-in-1 moto one-piece (SKU #785593) (shown on the right) at gap.com. Chris was never contacted.
Chris's interest, as you can tell from his Flickr page, is the car itself, not the photograph's potential commercial use. The original photo was posted to Flickr under a Creative Commons license (CC BY-NC-ND 2.0). The license used requires attribution, and forbids commercial use and derivative works. The Gap's use of the image violates all three clauses.
He asked for a response but never got one, although the items were removed from gap.com. The story got picked up by a large number of online sources (as one iWag quipped, "Internets are angry!")—there's a list of them all at Chris's Flickr page (to which Chris can now add TOP).
One commenter said that all Chris probably did was to get some poor low-level graphic designer fired. But a site called Styleite even suggested that this might have been among the many reasons why former Gap President Marka Hansen left the company early this year.
So here's a situation most readers can probably more easily identify with, as well as an infringer that isn't cast as inherently sympathetic (unlike Andy Baio). Are your feelings about the issue still the same after reading this as they were yesterday?
Note, too, what one Flickr commenter called "TRAH X3IA" found: that there are numerous other very similar pictures available on Flickr with licenses that do allow derivative versions and commercial use. The Gap designer could simply have used one of those.
Lawyers, as Chris says, are talking, and the outcome of the case is still pending. As Chris wrote to me yesterday, though, "I really am interested in where the legal boundaries lie. I'm sympathetic with the point of view that re-use in some form should be possible, but I'm also sympathetic with the point of view that the original copyright owner should have some control over how material can be used—otherwise, what's the point of even having copyright?"
ADDENDUM: There's a bit of confusion about this in a few of the early comments: Chris did indeed prove it's his specific photograph the Gap used, and you can tell at a glance—just look at the matching reflections in the windshield.
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Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.
Featured Comment by Brigitte: "I work in the fashion industry as a textile designer and I am very familiar with this issue. (And might I add quite touchy about it, being a photographer myself.)
"The reality is that the internet has become the number one resource for many textile studios. There is a strong demand for photographic prints nowadays and it is certainly easier, faster to search for what you need on the net rather to go out and photograph it yourself.
"Typically though, the images are manipulated beyond recognition and become part of an all-over print, making them nearly impossible to spot. If we want something very specific that will be used as a single image, and therefore easily recognizable, we do purchase it from a photo library like Shutterstock.
"So I am very surprised that someone working in a company as well distributed as Gap thought he can get away with this. (It is also very possible that Gap did purchase this print from another studio. Not everything is produced in-house. It would make that company, which would have sold the image with a full copyright, accountable for this, not Gap.)
"The other thing I want to point out is that some well known brand like say Volkswagen do not allow their cars or logo to be reproduced freely. I wonder what the policy is with the folks at Jaguar?
"Anyway, the only way to protect yourself against this kind of theft is to watermark everything you do post on the 'net. No one will touch your images then."