Nice to see that Katerina is still following the posts here, and contributing again.
Sorry to hear about your divorce, Katerina, however, I'm happy to hear that you've put that infringement issue behind you.
As copyright laws don't go into great depth about "derivative works" and "fair use" in those terms, I think that judges use recent precedents to help guide their decisions.
Readers of the forum may be interested in "The Professional Photographers Legal Handbook"
Don't ask me why it's available online like this; but that's not my concern. Read it online, don't save it to disk, and you haven't "infringed".
http://images.mescasa.multiply.multiplycontent.com/attachment/0/Sec60AoKCCUAAEnPbSg1/The%20Professional%20Photographers%20Legal%20Handbook.pdf?key=mescasa:journal:63&nmid=231756627Refer to page 79 "Parody as Fair Use".
In Rogers vs Koons, Koons made a sculpture of the subject matter of Roger's photo, then took a photograph of that sculpture.
Koons lost the infringement case, because the court determined that the photo of the sculpture, while "adapted in a different medium, photographs of the sculpture could harm the original photographer’s market."
My interpretation of this would be that while a painting or sculpture based on a photograph created by another artist might be permissible, the sales of photographic copies of the painting or sculpture might harm the original photographer's market, and therefore be an infringement.
The book makes a further reference to a case against Koon, in which he prevailed (based on fair use) on page 81.
In Blanch vs Koon, Koon had created a painting based on a collage made from a photograph taken by Blanch.
The court found that Koon's use of Blanch's material was "transformative"; that is "he used Blanch’s image for a 'sharply different' purpose than Blanch’s purpose in creating the image."
Additionally, the court found that Blanch's use of the photo was for a glossy magazine inclusion, but Koon's use was intended for an art gallery exhibit.
Furthermore, Blanch hadn't used or licensed her photo for use after that first magazine publication, and therefore Koon's use did not “cause any harm to her career or upset any plans” that she had for the photograph.
The book points out that the courts have begun to take greater note of the "purpose of the person making it (the transformation)", rather than the actual "nature of the transformation" (artistic medium and percentage of the original work used for example).
Again, more often than not, these sorts of things are settled out of court.
Here's a link explaining a lawsuit over a graffiti mural that appeared for a second or two in a Chrysler commercial:
http://www.partridgeiplaw.com/graffiti-and-law-copyright-%E2%80%93-framed-jennifer-lopez%E2%80%99s-fiat-commercialAnother graffiti artist has lost an infringement case against him based on a stencil "copy" of a RUN-DMC photo:
http://www.petapixel.com/2011/06/10/photographer-victorious-in-copyright-lawsuit-against-graffiti-artist/Some analysis of the above:
http://www.streetartnews.net/2011/01/thierry-guetta-aka-mr-brainwash-sued.htmlClearly, the most uncertain (and therefore the most risky) court cases are those that "the law" really doesn't cover.
One cannot be sure of who will actually prevail in such circumstances.
S.G.
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