Ten years ago I made this picture:
In 2006, a publisher (Little, Brown and Company) asked if they could purchase the rights (and Photoshop a child in the snow). This was their proposal:
I said no. Three years later, I stumbled across this book at Barnes and Noble:
Now I hear that Winter’s Bone became a movie and won the Grand Jury Prize at Sundance.
I can’t wait to see the poster.
127 Replies to “This is annoying”
I say good for you for remaining true to your artistic vision. The publisher did a shameless rip-off of your idea, but your original has more class.
From my perspective I see a work around for the publisher, who must have thought damn that’s the image we wanted… oh well onto option #2. It looks poorly hacked together, but shameless rip-off? jerks?
and it’s a crappy crop . . . .
Wow… that’s a shame! It’s a great shot, and a great film. Too bad some asshole had to insist on tarnishing the legacy of both.
So annoying. Doesn’t anyone try to have original ideas anymore? Don’t they want to support the photography that inspires them rather than take with or without permission?
To be fair, they tried to support the guy. Guy said no!
That chaps my hide! Looks like the publisher is a division of Little, Brown. I’m sure they’d be quick to defend their own publishing rights of the text, yet they so blatantly infringe on another artist’s work?
What do they have to say for themselves? I know several people in the online publishing world that have a pretty slack attitude to copyright.
There was a case recently where a sculptor created a piece of work (without permission) directly from a photo he found on the internet…
I haven’t heard of any outcome from that situation, but a similar infringement was done by the sculptor Jeff Koons, back in 1992, and it resulted in a lawsuit…
Anyway, just info for whatever it’s worth. Not sure would apply for movie posters & book covers.
Shame on them for stealing, and making a really shitty copy of, your work!
I’m glad you have a good perspective on this, that it’s annoying. I like your original. I think their proposal nice, but the final not so nice, annoying maybe.
I must admit that I previously rushed to comment before noticing that there are some “significant” (in my humble opinion) changes that were made in the poster to differentiate it from the original photo- yes, they stole the basic idea, layout, vision, etc- but definitely removed, replaced and altered enough to (I think) “separate” it from the original.
I’m not excusing their outright creative laziness and basic sleaze factor by any means, just pointing out that legally, they’re probably sitting pretty- especially in an age when so much imagery gets stolen and used outright with little or no consequence…
Well, can’t Magnum or Steidl just send a letter demanding some kind of payment for this grab? Donate everything to some publishing fund or photographer’s fund, so the point is not the money, but respect.
bastards. obviously they liked the idea enough to not understand “no”. And they couldn’t come up with another idea. Who else have they done this to?
You may be able to sue for theft of the Intellectual Property of your art. Question is do you have the time, money, and anger/energy to get the ball rolling? Is it worth it?
They got an idea inspired by your idea. They didn’t want your refusal to get in the way of their idea. Happens all the time. And legally they’re probably in the clear. Annoying as fuck.
That is completely annoying. Your original image is my most favourite image. It struck me immediately when I saw it in the Photographer’s Gallery in London. I also have the book. Is there anything you can do?????
That`s the way art goes. If it`s good, sooner or later it gets copied by advertising.
You have to stay ahead.
I like how they placed the clothes above the tree line, sorry.
3 words, http://4gifs.com/gallery/d/160787-1/Sloth_shades.gif
For what it’s worth, the movie poster is nothing like the book cover. I’m not sure if it makes things better or worse: http://film-book.com/winters-bone-movie-poster/
Looks like the ripped off every Hardy Boys or Nancy Drew book cover ever made for the poster.
@tired Maybe. Or maybe not… or the publisher had the picture in the head, found a couple similar, ask the artists, some of them said ‘no’ (just like Alec Soth) and others said yes and grant them the permission to use it the way they like (photoshop included).
And Alec won’t be protected by copyright because… it’s another photo. Copyright protects the expression not the idea (those are patents for industrial innovation among other things).
so i’m curious how everyone feels about the Shepherd Fairey case…..
would the book cover had been better if you had agreed to their proposal?
i don’t really understand why you are annoyed, but the final book cover should be up on photoshopdisasters.com
I feel your pain on this one Alec. I have been in this situation with book covers myself a few times.
What really annoys me about this is not the blatant copying of your image. That has been going on since photography was invented. (Imitation sincerest flattery etc). It is the idea that you have to take an image for a book cover and alter it to fit a story. You only have to walk into a book shop and see that many many covers have some very poor retouching whereby a person has been dropped in, skies changed, etc etc.
The designers and book publishers seem to think someone willing to buy a literary novel like this, presumably someone fairly educated, would have chosen something else or even no book at all, because your original image was used.
Anyway, I like your photo.
PS Actually, when I said I like your photo what I really meant was it would be better if it had a woman in it. Maybe like slightly J Crew-ish looking woman. Maybe like she has been beamed down from Planet Getteee and is floating around in the mid distance. Maybe she could be holding a gun. Well if not holding it, maybe have one somewhere floating near her body. Oh and could you make the sky blue because I want the picture to be sort of warm and cold if you know what I mean. Oh and could you get rid of that wife beater undershirt on the line and add a pretty olive green sequined slouchy sweatshirt …….actually forget it…who took this picture????
Nothing annoying about it. I had to re-read your description a few times to see where the problem lies. There is no problem.
You said no.
If the original proposal had been your idea, then they would be jerks.
If they had used your photo without your permission, then the would be jerks.
Next time, say yes.
Exactly, your fault for saying no
They were inspired by your work. Proposed to use it (and presumably pay you for the privilege). You decided not to work with them. They took that inspiration and came up with something arguably inferior, but sufficient for their needs. If the fact that someone else previously had taken a picture of a house and clothesline scene is sufficient to make anyone else that does likewise a jerk, then I suspect you may find yourself in that category too.
Thats rough, but if its any consolation adding the blue sky to your image was just the wrong way to go.
While copying your composition, theres no doubt about that, the other image does have a different feel than your original. Also for the sake of the composition of the book cover, the fact that the clothesline isn’t hidden within the tree line really works with that image.
Don’t say anything until the movie poster is produced then approach them. This is a relatively open and shut case of copyright infringement.
Wait a minute. Am I the only one to note that Little Brown Mushroom contains the words ‘Little’ and ‘Brown’? I’m not sure that by removing the comma and replacing the company with a mushroom Alec has done enough to protect himself from these people!!!
You turned them down (why?), they created their own version. Just because you snapped a picture of a house and clothesline in the snow doesn’t mean you own the rights to any similar shot.
Cry me a river.
Hope this means CACHING$$$$$$ for you.
… and my first thought was that surely they owe you a great deal of money … and hopefully you copyrighted that image (or will do so now) as to get the amount you deserve. Here’s keeping my fingers crossed that you don’t get more screwed in this deal.
Sorry, but I think the publisher’s version actually works a little better. Feels colder and the clothes don’t get lost in the trees.
When an artist does this, it’s appropriation or quoting. When a corporation does it, it’s stealing.
I’m sure it’s annoying–and possibly even actionable as an infringement case, since they approached Soth for use of the photo, and since there’s clearly an economic and IP confusion issue here–but what they’re also doing is calculating that Soth won’t do anything about it except whine a bit. If he wants to, he can threaten to sue, and they’ll settle, and we won’t hear anything about it.
Otherwise, the vagaries of copyright and copying and inspiration and appropriation that artists deal with are the same for corporations. Either fight, or call it out and move on.
“Copyright is the set of exclusive rights granted to the author or creator of an *original* work … ” http://en.wikipedia.org/wiki/Copyright
The problem is: either a corporation nor an artist have the *original* photo simply because is another photo. No copyright involved here… sue them and hear de judge saying the same.
Advertising rips off art all the time–on purpose. They do it to look hip and cool and up to the minute, and just to get ideas. They’re appropriating, all right–they’re appropriating the reputation and the goodwill built up by artists over the course of difficult careers. It’s been a peeve of mine for years, and I notice examples–scads of them–as they go by. Have you seen the current television commercial that blatantly rips off Christo and Jeanne-Claude, directly in the wake of the latter’s death? So much so that at the end of the commercial there’s a disclaimer disavowing any connection to the artists. (Apparently put there after Christo’s lawyer complained.)
It’s had me thinking of severing my longtime use of AT&T.
I worked for a commercial photographer once who showed me a series of photographs he took that were essentially bad (really bad, blatant, unsubtle, coarse, kitschy) copies of Vermeer paintings. He showed them to me with a proud smile, asking, “Can you tell who my influence was for these shots?” After a moment I got over my initial stun-stick reaction and said, “Vermeer.” And he said “Good eye!” Christ.
Come on Soth, don’t start crying like another art-star.
They asked / you said no / they made their own picture. Where is the problem here?
Indeed. You want to own the idea (not the image) of a winter scene with a house and drying clothes? No way.
Wow, they basically only love the composition of the objects in your photo since they change the house, the tracks in the snow, the articles of clothing and even the angle of the clothing line.
Just chalk this one up as you being an inspiration. Good luck on your next ones.
if it happens to a photographer like your caliber, what about the others ?
those guys should have been afraid of doing such a cheap work !
I like your original shot, and I like the liberty they took to create the book cover, but why didn’t the publisher approach you BEFORE creating the mock-up? Or am I missing something here? Shame on them for not consulting the original artist before making a book cover using that art. I think a little shame on you for not accepting their offer. Were the terms too restrictive? Did they want unlimited rights for the photo ad infinitum? Or was it purely an artistic decision?
I think you would have a hard time pleading a copyright case on the final version, because it has been changed sufficiently from the original work. Plus, unless you are loaded, they probably have more money to throw at lawyers. In fact, if they get wind that you have posted this comparison/complaint, they might DMCA you for posting THEIR original work (the mock-up) without THEIR permission.
From what I hear, this sort of indirect theft is very common.
I’m curious as to why you said no to them, though. I can understand not wanting to have your work edited, especially with elements added like that, but a book cover seems pretty innocuous. It’s not like they’d be presenting it as an exhibition of your work.
I think their proposal looked like a pretty decent book cover.
Yeah I would agree that it’s incredibly lame of Little Brown to move ahead after your refusal. On the other hand, (after you get Magnum to spend countless man hours suing on your behalf) you could possibly think of it as flattering that your image as source material has influenced the aesthetic of the paperback and ensuing film adaptation. Anyway, life is too short to get your knickers in too much of a twist…
Your argument is bullcrap, actually.
Hardly an appropriation, but clearly a dishonest mimicking of the original photograph.
Would be interested in DA’s response had it been his work. Blase? Wonder.
Whatever you say Richard…
Well, in fact I wouldn’t care too much… and if you read my original post then you’d get my honest feeling on tje subject. Fine to disagree with me, but no need to act like a bully Richard.
Why did you say no?
Some industries thrive on pastiche! They call it “inspiration”; we call it “imitation.” Good for you for putting them on blast.
Annoying, yes. I would also be annoyed that I didn’t take an opportinuty that worked out great for the person in line behind me.
They liked your picture, asked you to use it, you said no, they said eff u, they found another picture that was similar, that person said yes. Easy as that.
The picture they used isn’t necessarily an imitation, it’s just the second picture that came up on google images. If I took a picture of a kid making a snow angel I couldn’t say that every picture of a kid making a snow angel was an imitation of mine.
Don’t hurt leave too big a brooze from kicking yourself.
That’s just lazy.
I think that you should get yourself a copyright lawyer and sue the pants off them. For stealing photos from me, I have had to get a lawyer to deal with CBS, NBC, and numerous publishing houses. This is a violation that should not be allowed to happen. Once you press the shutter on your camera, you own the copyright – even if you haven’t filed the paperwork.
Clearly a derivative work.
…so clearly a case for legal action.
Why are you annoyed? I don’t see any element of your photo in the WINTERS BONE photo. maybe you should have sold them the right to PARTIAL parts of your photo.
Um…explain to me what the problem is here? Because you took a picture of a house in the snow, no one can ever use a similar image? Pity them because they can’t reproduce something as good as the original, but HELL, they asked you if they could use it.
I’m with Joe (the first)…give me a break.
Yep. Agreed. I don’t see an issue. I hope that is you are annoyed with yourself.
What’s weird and depressing to me about this is how locked in they were on the original photo–which in its original manifestation is a compliment–and how obsessively literal they were about following up on such a strict interpretation. A good art director can take inspiration from a scene and diverge from the specifics.
While this makes an interesting story of what might have been but was intentionally chosen not to be – I don’t see ANY reason for indignation. There is certainly NO copyright violation. If original ideas and inspiration were exclusive rights then only a handful of extraordinarily creative photographers would be able to take any photographs.
How much did they offer for your photo? Why didn’t you take it?
If you didn’t take their offer because you wanted more money you were the one who violated the pricelessness of the art, trying to assign a price to it and commercialize it as if it were a pound of beef. They just played the negotiating game better, knowing when to leave the negotiation table and going for an alternative.
If, on the other hand, you didn’t want any money but denied the use anyway… shame on you for being so selfish and trying to keep people from appreciating something nice. Why don’t you take pictures and keep them for yourself, never letting them out of a room?
Can’t believe it. So things aren’t better over there than they are in France. F…….. annoying.
Some companies think they can do anything because they have the cash and lawyers to get them out of any indiscretion. It’s a pathetic lack of creative integrity. If they were that good, they would have been able to come up with another creative, just as good, without being unethical. I’ll be sure to skip both the book and movie on your behalf.
Unfortunately this also shows that anyone can do anything with photos, and that the permission is just a courtesy if the judicial system doesn’t take this seriously.
Unethical? What the heck have you been drinking, Adrienne? A guy named Alec takes a random picture of a clothesline and a house in the middle of winter… and now it’s unethical for anybody, anywhere, at anytime, in any langauge, for ever and ever, FOR ALL TIME, to combine a clothesline and a house in the middle of winter, without Alec’s blessing? …. Really??
That would be even more harmful to human creativity than the so-called “unethical” behaviour you’re dreaming up.
Sorry but I fail to see the point. There is no resemblance whatsoever between your photo and the final version on the book except that there is some snow in the scene and an (obviously very different) clothesline. – shrug.
Wow, if they had used your photo without your permission, I could see you crying foul.
As is, I don’t believe they have done anything wrong. If anything, I think you should feel dumb right about now for not having sold the image.
This is no cause for righteous indignation. Simply a bad play on your part.
Live and learn.
David (a photographer)
Have you talked to an attorney?
I think you have a pretty strong case.
Looks like you should have sold the pic!
I wouldn’t want a photo of mine associated with Arctic porn either…
Winter’s Bone IS pornography, right?
I find it odd that some of you seem to be siding with the publisher. You make it sound as if the art director had an idea BEFORE seeing Alec’s photograph, and then happened to see Alec’s image and exclaimed “There it is! That is what I had visualized!” It’s more a case of, “Let’s see if we can lowball this guy and if he says no, we’ll just steal his idea.” I mean, even the colour of the shit hanging on the clothesline is the same. This is a blatant rip off…
Having worked with some art directors at publishing houses, sometimes the idea for the image is formed way before the first image search is done. Sometimes the editor and the art director sit down and throw out ideas. Sometimes they try to picture a scene from the book. Sometimes they ask for input from the book chains.
Whatever the general theme is, the art director will then go make it happen. They rarely get to do whatever they want with the cover, and there will be many more meetings where they have to justify changes.
Two final things: they obviously had choices of pictures to choose from. It usually costs too much to set up a shoot, and production schedules probably wouldn’t allow them to wait that long. Instead, they probably just searched an art archive for “house, winter, clothesline” and looked at the other options. The composition isn’t complex. I’m sure they had a slew of options.
Second, if they stole Alec’s idea, Alec’s been stealing the ideas of photographers from way back in the 1910s: http://www.harperscamp.ca/photo/982_201cn.gif
Hi Mike, I had noticed that the colors of the clothes on the line had been altered in Mr. Soths Picture. In fact, they added some articles of clothing to the line. I imagine that is probably the reason why the colors are similar on both of the altered photos. That’s just something I noticed.
I just think that it’s good to keep in mind that there is a whole other side of the story.
If it where me I could imagine myself getting offended and would probably think the same way Mr Soth did at first. However, there is probably much more to it then it seems.
I like their’s better.
They tried to compensate you for your work, you said no, stop whining.
In response to David (a photographer) … There is a fine line between honesty and brutality.
Under British law, proving that an advertising agency has breached copyright or is attempting to “pass off” a campaign as the work of an artist is legendarily difficult.
“Copyright covers the expression of the idea, not the idea itself,” Brinsley Dresden, of the law firm Lewis Silkin, explains. Which means that although the underlying idea may be similar – rabbits in a cityscape, tyres rolling uphill, members of the public holding signs – as long as they differ executionally, no copyright has been breached.
Passing off, whereby an artist attempts to prove that a brand is attempting to cash in on their goodwill or reputation, is another option – it worked for the British installation artist Andy Goldsworthy, who received £70,000 in an out-of-court settlement in 2002 from Habitat’s then ad agency devarrieuxvillaret after claiming that its campaign for the furniture chain copied his Midsummer Snowballs installation.
Very annoying, how dare they get another picture done with a clothesline and winter themed background. Clearly copyright infringement!
Maybe these people would be annoyed too:
Maybe they would be annoyed with you?
So many entitled people in this thread. Yes the original is a good picture. No, he is not the first to take a picture of a clothesline in the snow. No he not entitled to anything. Deal with it.
David, you are right, I do feel dumb for not selling the image. And Ricardo makes an even better point: shame on me for being so selfish and trying to keep people from appreciating something nice. From now on, I’ll be sure to say yes to every idea that comes my way.
Hahaha! Now just wait for a letter from Miller’s attorney.
Now if you could just crop out the building, put in a better sky and maybe make the guy’s overalls blue it would be just about perfect. ;^)
Oh yeah, one more thing, the guy should look happier. Could you put a big smile on his face? We really love your work…..
At advertising they are dumb enough to call it reference!
In Brazil they use to send as some sample images, saying that’s just a referenced layout and they keep telling you to remake the shot till you got the same image…
And that’s a good reason for not working in advertising business down the equator line!
ps: Alec, are you coming to Brazil for Latin American forum?
Annoying indeed. And only slightly less annoying are some of these responses. Blogging aint easy.
Remarkable how many people are recommending that you sue. There’s something sad (and distinctly American) about that.
I can understand the annoyance, but they did go to you first and you turned down their offer (for good, ethically responsible reasons no doubt). So they riffed on the idea in their own way — a poor facsimile, but that tack shouldn’t have been all that unexpected. Annoying, but not unexpected.
But then yours isn’t the only photograph of a house in snow (should everyone who’s photographed a house in snow with a clothesline sue them?) and the house in snow that you photographed wasn’t yours either, I’m guessing. Maybe the person whose house it is should sue?
My advice would be to see this one out with a long sigh and carry on…
Er, maybe Joachim Schmid could do some great books out of blog comments?
That’s more like it Alec!
MGD – see, you didn’t study at a fine east coast art university for nothing.
But seriously, I do fall into the its not appropriate-for-them-to-have-done-that camp, but I think you would have a hard time making anything of it, apart from raising the alarm in this online arena.
Thanks Tom. This is much better
Amazons don’t drink lite beer.
Sounds like Mannion v. Coors Brewing — see slide four –
How can anyone call this stealing the idea??? It´s the very same image for christ sake!!! Good thing you keep your sense of humour Alec. And i would certainly take them to court… bastards…
Look at the original photograph. Then look at the final book cover image, ignoring the publishers first suggestion and the story behind it. Look at the first photo again, and then back to the book cover. Repeat, and keep repeating and you’ll eventually see that the first image is a photograph of someone’s houseboat on a frozen lake or river, while the second image is a book cover illustration depicting a girl in a winter landscape carrying a rifle.
Someone’s houseboat. A girl carrying a rifle.
It’s not the same image. It’s not an edited version of the original photo. I seriously doubt that anyone not in the know would see anything but a superficial similarity in some details between the original photo and the final book cover, and I seriously doubt they would consider the similarity anything but a cute coincidence.
Can’t even being to imagine why you said no.
This is annoying. And sad. But it does not surprise me. At all.
If someone hasn’t mentioned it yet, I’d at least run this by Electronic Frontier Foundation and Creative Commons and see if they think you might have a case. (I think you do.) Because of your situation as the artist and the blatant appropriation of your idea either EFF or CC might be interested. Generally they support free culture and loosening copyright but they also support the artist’s right to choose how to share.
I reckon you should have let them use it Alec. At least you would have got a photo credit.
Both covers however look typographically rather dull. Taking a photo and just overlaying a headline in a blank space is just too easy. A more creative cover design would have the type interlocking into the photo in some graphic way so that both elements work together.
I was interested in Peter Fleck’s comments. I wonder if you were to investigate the copyright theft wouldn’t have to prove that you had somehow lost money?
their original mock-up was changed just enough so that they wouldn’t have to pay you (all they have to do is prove that they altered the original by more than 20%). and the final cover was changed in addition to that to ensure no lawsuit. this is disgusting. hopefully the company can generate something original in the future.
it could have happened like this:
1. designer read first pages of book –just enough to do this job. has idea for cover and goes looking for “winter scene — poor, Ozark-y — with clothesline”. he/she pulls a couple of images. goes for lunch.
(or author! I’ve read this book and there is a clothesline imagery in it. Unlikely that he was inspired by your picture)
2. like yours, approaches you, gets rejected
3. picks up image #2, approaches that guy, gets the AOK. thinks not one more minute about it.
This was a tiny book, written by a mid-lister about to get dropped. I don’t think they spent the money on time to recreate. IF this had been a major book, they would have.
Do you honestly think that they went out and found a picture of a house in the snow with laundry hanging from it? This is clearly a composite photograph. If you look at the first photograph, the laundry is hanging about ten feet from the ground. This is not functional laundry. It is decorative.
What are the odds that they are going to find a stock picture of decorative laundry hanging ten feet off the ground from the left side of a house in the winter?
John H gave the ridiculous assertion that Soth’s image is the same as any Google image search for “clothes line.” But do you see one image that looks like Soth’s. Now try “clothesline winter.” You still won’t see anything close.
My guess is that the designer found a picture of clothesline and a picture of a winter house and put them together to look like Soth’s photograph. Is that illegal? Probably not. But is it annoying? Yes. If you are too lazy to be creative, at least cover your tracks.
Yeah, the publisher’s final book cover was a composite. So what – many book covers are. And so it vaguely looks like Soth’s original photograph and we now know the publisher’s art designer had seen and approached Soth about using his photograph. But since when does general resemblance constitute copyright violation or anything the least bit illegal. Soth also had turned down a request to use the photograph for the proposed purpose. The art designer obviously liked the theme and could have commissioned another photographer to make a similar looking image – but that is expensive so the desired image was created digitally. There seems to be this naive belief that making a vaguely derivative work is “lazy” or illegal or corrupt – yet this has long been common practice in the design work – and even among artists (including photographers) themselves. Had Soth not been approached by this publisher he would never have definitely known that that book cover was inspired by one of his photographs. He might have been a bit suspicious but there is nothing about the book cover that would presume it could not have created from other other photographic images. The definition and practice of creativity that requires absolute originality. Indeed much of art is derivative. Soth could have licensed his photograph image but specifically chose not to – he retained the original integrity of his work. However, he should then not have been surprised that a somewhat similar but not identical image was used for this book cover instead. Annoying – why? He should be flattered.
Not sure what you mean by “licensing” but copyright is attached automatically upon publishing or printing or whatever even if you don’t use the copyright “C” symbol. You can then further license with the feds which will allow you to potentially collect more in damages but you don’t have to register. You still hold the copyright.
This is very similar to cases where a famous musician (George Harrison & “My Sweet Lord” comes to mind) is sued after someone sends them a tape with original material and a few years later the famous musician has a song that sounds similar to one of the songs on the tape. (Harrison lost BTW.)
With regards to Ernesto’s point, I would imagine the clothesline in Alec’s image is on a hoist so it can be raised out of harms way so I don’t necessarily think the line itself is decorative.
I live a hot country so wouldn’t know, but do clothes easily dry in such weather, practically speaking wouldn’t you dry a small load like that inside, by the stove? I thought Sleeping by the Mississippi was a more of a poetic account rather than straight documentary, so assumed Alec had asked the owner to hang up some warm toned clothes to offset the winter murkiness.
If he had would that make a difference ? This has made me think about Paul Graham’s “The Unreasonable Apple” essay , I think that there is a general assumption by many replies that this is just another photograph and that Alec was foolish not to sell the rights.
Why is it that even many photographers feel that a seemingly “straight” image is a throw away snapshot, ill considered and the result of chance. Personally I’m flabbergasted that the publishers even asked to doctor the image in such a way.
Beautiful imagery, keep up the great work!
It’s better to beg forgiveness than ask permission..
Their request to license is the crux of the merit of the claim and shifts the burden of proof very firmly in Mr. Soth’s favor. Because of this, the publisher would need to substantiate specifically how and when they originated the idea and/or the expression thereof.
Even if it references the content of the work within the book, the composition and more specifically the lesser elements of the image would define not just a derivative work but a clear and cohesive attempt to steal.
Ordinarily the defense of appropriation, ‘inspiration’ or concurrent creation would be sufficient for the publisher. Unfortunately for them, their inquiry mitigates the merit of these claims. Ignorance of a similar image or idea is critical in a claim of this type.
This is the specific reason that contest entries must include transfer of rights.
The devil’s in the details.
Nice post, Greg. This is exactly the thing I was referring to in my last comment above by pointing to the “My Sweet Lord” case. You say it very well!
Of course, the publisher is “lawyered up” which could make matters difficult. That’s why I would talk to Creative Commons and/or Electronic Frontier Foundation and see if they would have any interest in pursuing the case.
I’m a lawyer (found this page via Google Reader’s “play” function). While you’re correct that it’s annoying, it’s not a copyright infringement and a lawsuit would be a waste your money.
Don’t let the posters talk you out of pursuing this. The rules of fair use are extremely convoluted. Remember Rogers vs. Koons?
The plaintiff in that case was awarded $369,000, even though one could easily argue that Koons had only borrowed the idea and not stolen the image. There is absolutely no harm in having a consultation with a reputable copyright lawyer. In fact, look up the firm that argued that case!
It’s sleezy but probably not actionable — they didn’t photoshop the original or anything. So typical of the corporate mind and lack of scruple. Did anyone see the Helvetica film in which one designer rants about MIcrosoft for refusing to oay royalties or rights , but simply comissiofor the use of Helvetica, but simply commissioned a ripoff ? I love having my images on books, and I don’t mind about small crops and things. If a picture is any good, it can stand a little messing with.
Alec Soth is undoubtedly very knowledgeable about copyright issues – far more so than many of the individuals who have posted comments. He would be well aware that there is no basis for a copyright infringement lawsuit – and that any such action, whether he ultimately won or not, would be extremely costly. The claim would need to argue that the infringement involved more that mere copying of a theme, that is whether the placement of specific objects in an image can be considered a copyright violation. I suspect he would be hard pressed to find any competent copyright lawyer to agree that this was a winnable case.
Instead Soth has chosen to publicize his issue. Since this behavior is not illegal, I don’t see that it will stop because of this.
That sucks man. Regardless of the book or poster art, the film is good:
Winter’s Bone FILM REVIEW:
just saw this movie poster:
which feels like a lot like loretta lux
the french version is somewhat different:
Did you know that I actually shot the initial poster for Life During Wartime! (They never used it). No joke.
He did say it was annoying, not illegal. I’d be annoyed too but not outraged. I feel like some of the commenters are reading more into this post than was intended.
Yes, that’s certainly annoying; and graceless behavior by the publisher (and/or cover designer). Weird too, that they had to follow your composition so closely. This suggests they have absolutely zero imagination. If I was someone higher up in Little Brown I might worry about the person (or ‘team’) who put that together.
Can’t you sue them for copyright infringement? That’s a direct rip off of your idea. It would be like me photographing a guy in a sailor’s uniform smooching a gal in 40s dress in the middle of a victory parade in Manhattan and saying that the idea was all mine.
But the lighting, subjects, angle and overall photo would still be different. Even if yours was a technically better picture the original would still be far more valuable because of the historical context in which it was taken. You’d own the copyright on the new image so it wouldn’t be illegal, it just means it wouldn’t be very original or imaginative. Hardly something worth suing over.
The photographer said no to a request for usage. Company liked the concept so created their own version since they couldn’t use the one they wanted. Honestly, I like their version better. It fits better, graphically. Lower angle, different location, similar concept, not a “steal”. A steal would have occurred if they had gone to the same location and recreated the image nearly the same so it would be difficult to tell them apart. Or, if they had asked, Alec had said yes, quoted a fee, then they refused, and went on to make a nearly identical copy anyway.
The reality is Alec said no.
I would be annoyed, perhaps, too. More at myself than at them, in this situation. If it was about maintaining the integrity of the work, then annoyance wouldn’t come into the picture if I said no. It’s a given that photos and concepts are copied over and over, “re-imagined”, whatever you want to call it. I think in many instances we take too much possession of photographs, which are often so easy to duplicate. It’s not a cut and dried argument, either. There will always be someone who will or can create a better version than yours.
I like them both, however. Maybe I’ll chuck a clothes line in my truck and look for old buildings this winter…..
Local stencil/muralists BrokenCrow probably can understand your feelings.
They were commissioned to do a large piece in NYC. Turned up on a Olympus Pen camera commercial. If you notice, you will see that whoever did the editing made the cheetahs face look damn goofy.
Very parochial on the part of photographers.
Let art develop on its own without the interference of attorneys, suits, and llimitations.
It is easy money… speak with a lawyer! Anyway they at least asked you while my photos were used without question until I started to use a watermark which runs through the whole pic.
It seems I will have money from one of this stealing… You should speak with an attorney too. (if you wait the poster… it would bang bigger ;))
I think it’s nice they asked first. Why did you say No?
Hooray for Adam (the lawyer) at last someone’s contributed a bit of reality and sense into this debate.
The movie is out.
The same publisher just contacted me with what seems like a demand, rather than asking gracefully for a permission:
I’m designing the jacket of a book titled “Cloudland” by Joseph Olshan. I’m trying to present a design using your photograph of the hand crushing berries (I attached a screenshot). I definitely need a high resolution image to present at my presentation meeting. Would you be able to please send it to me as soon as you possibly can?
Senior Art Director”
I think it’s the email’s tone that is off-putting, on top of the fact that they want a free high res image.
Just thought I’d share.
That’s really annoying. Where does everyone get images they use to make book covers?