Online portfolio with pieces that contain images

[cdragin]

I got the infamous letter today (only demanding $600!) for a picture in my portfolio of a brochure that I designed for an ad agency some years ago. Of course the photo was bought and paid for by the agency or their client, for use in that brochure. They say I am using the photo for promotional purposes. This is a scaled down picture of a spread in the brochure, and one of the images on the page is the image in question. I'm wondering if the copyright still applies when it is one step removed like this. I'm not using the photo for promotional purposes directly...I'm using a picture of the brochure for promotional purposes. And the brochure includes the photo.

If I have to pay an additional license for every photo in every piece that's shown in my portfolio, then I can't afford to have an online portfolio...more than 50% of my print work includes stock photos, either ones that the client paid for and supplied or ones that I purchased through iStock for the client's use.

As an analogy: if I'm a landscape photographer, and my portfolio includes a photo that has a billboard in the view, and the billboard has a photo from Getty, would the landscape photographer have to pay to include that image?

[SoylentGreen]

Getty's doing this?  Sounds like fraud to me.

S.

[Oscar Michelen]

The landscape issue may be different, but in general what you are doing does constitute making a "Derivative" work using someone else's Intellectual Property.  IP rights include the right to make derivative works.  While it is a complicated area of law, in general, the rule is that the derivative work must make the original work nearly unrecognizable or else it is a copyright infringement.  Whether you made money or used it of promotional purposes is not a deciding factor on if an infringement occurred. I this website teaches anything it should be that just because something appears to be a "stock photo" does not mean that there are no IP rights attached to it.

[SoylentGreen]

Oscar, thanks for your comments!!  It sounds like 'cdragin' hasn't changed or used the photo out of the context of the original licensed use.  His client (or employer) paid to use the image in the brochure, and now he has the brochure displayed on his site.  So, he hasn't made a "derivative work", I think.

Imagine that I have a company that makes cars, and I use a stock image on my brochure.  Does every car dealer in the nation that displays that brochure on their site now owe Getty money?  I think not.

S.

[Oscar Michelen]

Technically (and all IP law is technical) if you make use of a copyrighted work or a derivative of a copyrighted work then you can be liable for infringement and damages. So even in your example, the car company, by using a derivative work of the brochure for its benefit, could be liable.

[cdragin]

Looking over the license verbiage on Getty's site, it sounds like the issue here may be that it was a rights-managed image (which I did not know...it was just one of several I was given to choose from for the project). Which could explain why they flagged me on that image, but not the other one on the page which was likely from them as well. I have emailed them and they say they should get back to me within a few days...nothing yet, alas.