Official Portrait For Pope's US Visit... Being Investigated For Copyright Infringement

from the the-holy-copyright-infringement dept

Mon, Aug 31st 2015 8:13am — Mike Masnick

The previous pope, Benedict XVI a few years ago made some waves by suggesting that intellectual property had gone too far, saying:

On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property...

The current Pope may now be at the center of a copyright dispute as well. Apparently, Pope Francis is heading to the US in a few weeks. And, as a part of this, apparently someone asked Philadelphia pop artist Perry Milou to create an "official" portrait of the Pope for his tour. And he did:

As a story at Buzzfeed notes, that portrait is on nearly everything related to the Pope's official visit to Philadelphia. It's on the website of the group organizing the visit:

And it's being sold on all sorts of merchandise:

You can even buy the original painting, if you have $1 million to spare:

There's... uh... just one problem. Getty Images claims that the portrait is based on a photo that it holds the rights to, taken by Italian photographer Franco Origlia. You can see that photo here:

And the two images side by side:

And, yup, it seems pretty clear that Milou found that image and made his painting based on that.

And most normal people would agree that this should be perfectly fine. Creating the painting is absolutely transformative. It doesn't take away from the rights of the original photograph and certainly is not a replacement for the original photograph and might even make the original photograph more recognizable and more in demand.

But, we live in the real world where copyright extremists freak out about just about anything. And Getty, for one, has a reputation as quite the copyright troll.

And, tragically, Getty is probably remembering what happened the last time a well known "pop artist" created a big recognizable portrait of someone based on a photograph held by a news agency: the infamous Sheppard Fairey/Obama Hope poster, that was based on a photo by photographer Manny Garcia, but where the Associated Press held the copyright:

In that case, even though many believe that Fairey had a really strong fair use claim, Fairey himself fucked it up by destroying evidence and lying, pretending that he had used a different photograph as the base. This was a really bad decision, because it poisoned the waters for a nice fair use defense, and got Fairey in deeper hot water. And, eventually that case was just settled.

One hopes that, should Getty go legal, that Milou doesn't follow Fairey's lead, and actually mounts a strong fair use defense. One would think that, at the very least, he'd have the Pope on his side, and that can't hurt.

Of course, given the ridiculous freakouts about these people daring to paint portraits based on news photographs, we're still wondering why no one ever threatened to sue former President George W. Bush for his paintings of famous world leaders that were also based on Google Image search results. Remember this masterpiece by the former President painting Russian leader Vladimir Putin based on the first result in Google Images at the time?

Somehow, no one decided to sue President Bush...

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Filed Under: copyright, fair use, perry milou, pope, pope francis, portrait, shepard fairey
Companies: getty, getty images

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Roger Strong (profile), 31 Aug 2015 @ 8:24am

On a related issue...
Will the NYPD ask the Vatican to abuse copyright IP law to help rid Times Square of Popes harassing tourists?
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Anonymous Coward, 31 Aug 2015 @ 8:28am

So Getty has thus far done nothing but state the fact it's based on photograph it owns?
What the hell is the story here? You ginned up a rant from imagining what Getty MIGHT do. A new low even for you.

Go on to next non-story -- if you have one. The three so far today total up to nothing.

Since imagining is valid, I imagine that next you'll run another piece gushing about Google getting billions for spying on everyone.
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- Roger Strong (profile), 31 Aug 2015 @ 8:43am
  
  Re: So Getty has thus far done nothing but state the fact it's based on photograph it owns?
  Yes. How dare someone suggest that Getty might react in the same way to exactly similar circumstances. On a story that would be newsworthy if they did, and newsworthy for other reasons if they didn't.
  
  It's like they're targeting you, forcing you to publicly embarrass yourself with ridiculous hissy fits.
  [ link to this | view in chronology ]
- Anonymous Coward, 31 Aug 2015 @ 8:49am
  
  Re: So Getty has thus far done nothing but state the fact it's based on photograph it owns?
  You're in the wrong comments section, AC.
  
  The complaint "you've ginned up a non-story" should be directed to Buzzfeed, since this is commenting on a Buzzfeed story. It was Buzzfeed that first linked this story to the Obama "Hope" poster controversy, since they too seemed to think this story warranted coverage.
  [ link to this | view in chronology ]
  - Anonymous Coward, 31 Aug 2015 @ 2:21pm
    
    And if there is a legal stoush
    It was buzzfeed who put the two pictures in front of Getty images.
    [ link to this | view in chronology ]
- This comment has been flagged by the community. Click here to show it
  
  ottermaton (profile), 31 Aug 2015 @ 9:00am
  
  Re: here come the nitwits replying to the troll ...
  For your efforts, each one of you gets a Report vote. After all, you deserve it.
  
  Stop fueling the non-discussion from the troll.
  [ link to this | view in chronology ]
  - Gwiz (profile), 31 Aug 2015 @ 9:32am
    
    Re: Re:
    For your efforts, each one of you gets a Report vote. After all, you deserve it.
    
    That's cool.
    
    I'm going to exercise my own free will and use my report clicks for those who continually bitch about who other people choose to respond to.
    
    Have a nice day.
    [ link to this | view in chronology ]
    - tqk (profile), 31 Aug 2015 @ 9:55am
      
      Re: Re: Re:
      I'm going to exercise my own free will and use my report clicks for those who continually bitch about who other people choose to respond to.
      
      Isn't it wonderful how everybody these days appear to have found their personal sacred cow, or is well on their way to finding it? It's like a golden age or something. Everybody's looking, everybody's finding, yet we appear to be suffering no shortage. In fact, they're multiplying, or coming out of the woodwork, or just spontaneously popping into existence.
      
      "Brings a tear to me eye."
      [ link to this | view in chronology ]
      - Anonymous Coward, 31 Aug 2015 @ 10:12am
        
        Re: Re: Re: Re:
        wait-- are you saying I can't copyright my Sacred Cow costume?
        [ link to this | view in chronology ]
        
        Anonymous Anonymous Coward, 31 Aug 2015 @ 8:01pm
        
        Re: Re: Re: Re: Re:
        Depends, does your costume have udders, or not? Elsie the cow might have some prior art.
        [ link to this | view in chronology ]
    - ottermaton (profile), 31 Aug 2015 @ 11:29am
      
      Re: Re: Re:
      I'm going to exercise my own free will and use my report clicks for those who continually bitch about who other people choose to respond to.
      
      I guess you think you're breaking my heart or making me angry or something, but that's what I do to my own comments on these idiotic threads. So what you're doing to me is every bit as pointless as replying to the King of Idiots in the first place.
      
      So, yea, have a nice day.
      [ link to this | view in chronology ]
      - Gwiz (profile), 31 Aug 2015 @ 12:09pm
        
        Re: Re: Re: Re:
        I guess you think you're breaking my heart or making me angry or something....
        
        Nope. Don't really care, to be honest. I was just pointing out that your opinions are exactly that - YOUR opinion and not necessarily the views held by others here.
        
        So what you're doing to me is every bit as pointless as replying to the King of Idiots in the first place.
        
        Once again, that's strictly your opinion and it's not one I subscribe to. I don't believe it's pointless to showcase Blue's incorrect statements to other readers.
        
        To be honest, I think your constant bitching about people replying to Blue is actually the pointless endeavor. If it bugs you that much, don't read them or write a Greasemonkey script to hide all replies to hidden comments or whatever.
        [ link to this | view in chronology ]
      - tqk (profile), 31 Aug 2015 @ 1:23pm
        
        Re: Re: Re: Re:
        So what you're doing to me is every bit as pointless as replying to the King of Idiots in the first place.
        
        Everybody should have a hobby. Anything that keeps people from lockin' and loadin' and heading down to [insert popular shoot 'em up meme here] is a good thing.
        
        I don't mind you reporting them to death. We can still read them, and reply to them, and you can report both of us, and yourself too; everybody wins! :-)
        [ link to this | view in chronology ]
  - Roger Strong (profile), 31 Aug 2015 @ 9:53am
    
    Re: Re: here come the nitwits replying to the troll ...
    Some believe that like with hate speech, the best response to trolling or disinformation is not censorship but more speech. Explain why they're wrong. No so much for their sake, but for others whose opinions they might affect.
    
    I thought that AC was wrong. While my response was sarcastic, it explained why.
    
    Another AC thought that AC was wrong, and explained why.
    
    Your preferred response is to shun AC. Fair enough, but it doesn't give you the right to force others to do so. For your efforts to supress others' speech, you earn a well-deserved Report vote yourself.
    [ link to this | view in chronology ]
    - jupiterkansas (profile), 31 Aug 2015 @ 10:07am
      
      Re: Re: Re: here come the nitwits replying to the troll ...
      Although he's right that giving the trolls here attention just makes them come back for more. We've been pointing out how wrong they are for many years now, and now their posts barely make sense at all. Half the time they're inconherent.
      [ link to this | view in chronology ]
      - Gwiz (profile), 31 Aug 2015 @ 10:34am
        
        Re: Re: Re: Re: here come the nitwits replying to the troll ...
        Although he's right that giving the trolls here attention just makes them come back for more.
        
        Yeah, that is probably true. On the other hand, the constant reporting of Blue hasn't deterred him one iota either.
        
        I do firmly believe that incorrect speech should be countered with more speech and I, like Roger, don't do it for the benefit of the original troll, but for the benefit of those who come along and read these comments at a later date.
        
        I've even responded to Blue on articles that were two or three years old, because he was going back to comment on them in an attempt to get in the last word.
        [ link to this | view in chronology ]
      - tqk (profile), 31 Aug 2015 @ 1:12pm
        
        Re: Re: Re: Re: here come the nitwits replying to the troll ...
        Although he's right that giving the trolls here attention just makes them come back for more.
        
        That's not true. They'll be back regardless of anything we do. They've an agenda to push, independent of facts, reality, or push-back.
        
        It's possible (with some) to engage them and possibly draw them out. I did it just last week. Nothing's proved by it, but at least it keeps things honest. "I'm looking to hear your point of view assuming you have one. It appears you're just deflecting or lying. Prove I'm mistaken."
        
        Nobody's forced to recognize their screeds, but it is wrong to allow them the big lie without any confronting of them. However, I am sympathetic to the idea it gets tedious seeing them pull the same boring arguments refuted years ago.
        [ link to this | view in chronology ]
    - ottermaton (profile), 31 Aug 2015 @ 11:32am
      
      Re: Re: Re: here come the nitwits replying to the troll ...
      Fair enough, but it doesn't give you the right to force others to do so.
      
      Explain to me how I'm "forcing" anyone to do anything.
      
      Hyperbole much?
      [ link to this | view in chronology ]
      - Roger Strong (profile), 31 Aug 2015 @ 11:47am
        
        Re: Re: Re: Re: here come the nitwits replying to the troll ...
        Dunno what consequences of being "reported" are, but it's not hard to guess. Likely they add up - anything from penalties for having a lower reputation score to having your account terminated.
        
        *YOU* obviously think there are consequences, or at least want others to believe there are, since you so proudly proclaim that you report those who disagree with your personal policy.
        
        C'mon. You're making AC/Blue look honest and reasonable by comparison.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        ottermaton (profile), 31 Aug 2015 @ 12:11pm
        
        Re: Re: Re: Re: Re: here come the nitwits replying to the troll ...
        The one major thing I asked you is: "Explain to me how I'm 'forcing' anyone to do anything" which you totally evaded and now have the nerve to say that I am dishonest and unreasonable?!?!?!
        
        Here's an idea: if you can't respond with further explanations about accusations you yourself made, go fuck yourself.
        [ link to this | view in chronology ]
        
        ottermaton (profile), 31 Aug 2015 @ 12:21pm
        
        Re: Re: Re: Re: Re: Re: here come the nitwits replying to the troll ...
        And just to respond to the idiocy you posted:
        
        anything from penalties
        
        Like what? There are none.
        
        for having a lower reputation score
        
        What's YOUR reputation score knucklehead?
        
        to having your account terminated.
        
        Never heard of that happening here, and doubt it ever would.
        
        there are consequences, or at least want others to believe there are,
        
        Yea? Quote me on that, shit-for-brains.
        
        since you so proudly proclaim that you report those who disagree with your personal policy.
        
        I don't report people for disagreeing with me (again, quote where I said anything to that effect. I Report people who are stupid enough to reply to trolls you dumbass.
        [ link to this | view in chronology ]
        
        Roger Strong (profile), 31 Aug 2015 @ 12:24pm
        
        Re: Re: Re: Re: Re: Re: here come the nitwits replying to the troll ...
        I explained exactly that.
        
        You're also making AC/Blue look good with respect to comprehension and maturity.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        ottermaton (profile), 31 Aug 2015 @ 12:27pm
        
        Re: Re: Re: Re: Re: Re: Re: here come the nitwits replying to the troll ...
        I explained exactly that
        
        Hardly. You made some unrelated and moronic suppositions that are totally false. See above.
        
        You really should go fuck yourself.
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        Gwiz (profile), 31 Aug 2015 @ 12:51pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        To quote ottermaton:
        
        "nitwits"
        "go fuck yourself"
        "the idiocy you posted"
        "knucklehead"
        "shit-for-brains"
        "people who are stupid enough to reply to trolls"
        "you dumbass"
        "You really should go fuck yourself"
        
        Do you know what else the report button is for? Abusive behavior. Just sayin'
        [ link to this | view in chronology ]
        
        tqk (profile), 31 Aug 2015 @ 2:10pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Do you know what else the report button is for? Abusive behavior. Just sayin'
        
        I was about to mention this to him, but decided not to. None of my business. Frankly, I couldn't much care what windmills others choose to tilt against. None of my business either. *All* of this sound and fury's pretty easy to ignore.
        
        I don't enjoy watching others fling epithets and insults at others who're merely attempting to discuss a situation, but again, still not really my business. I like to stand up to them and refuse them the right to intimidate others into quivering silence, but that's all I care about in the matter.
        
        Bottom line: It's better to be thought a fool than to speak out and confirm the fact. Everybody (I think) is well aware of OoTB's agenda. So what if people (still!) insist on calling *it* out?
        
        I also like to think of Mike looking on, as if Zeus on Mt. Olympus. "Should I do anything about this? Nah! Pick a side and fight, silly humans."
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Aug 2015 @ 2:28pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Mike as Zeus is a pretty funny image... Then Leda and the swan popped into my head, and I got weirded out.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Aug 2015 @ 2:34pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Everybody (I think) is well aware of OoTB's agenda.
        
        All regular readers are, but those who are visiting the site for the first time, and some of those visitors may be new to the Internet. Therefore it is worth refuting some of his points for their benefit.
        [ link to this | view in chronology ]
        
        ottermaton (profile), 31 Aug 2015 @ 4:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        You know, there was a time when Blue's trolling was totally out of hand and making the comments section pretty much unreadable because of all the halfwits responding to him.
        
        So, I started a campaign to report him and anyone with little enough sense to reply to him. Guess what? It WORKED.
        
        But, keep on replying to him and getting all self righteous about it. Let us know how that works out for you.
        [ link to this | view in chronology ]
        
        tqk (profile), 31 Aug 2015 @ 5:00pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So, I started a campaign to report him and anyone with little enough sense to reply to him. Guess what? It WORKED.
        
        Bravo, more power to ya, I'm not complaining. Have fun. Others may complain you're adding to the noise. I'm not. No skin off my nose. It's fun to watch.
        [ link to this | view in chronology ]
        
        Anonymous Anonymous Coward, 31 Aug 2015 @ 8:05pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        As a very long time reader of this blog, I have yet to see (sometimes unfortunately) how intelligent replies to trolls exceed the report level required to obfuscate them.
        
        See how well that works? Oh...I guess is doesn't work.
        [ link to this | view in chronology ]
        
        MrTroy (profile), 31 Aug 2015 @ 8:30pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So, I started a campaign to report him and anyone with little enough sense to reply to him. Guess what? It WORKED.
        
        Hey, I've got this magic rock that totally protects you against tiger attacks, you can have it for a great price...
        
        I have to assume that by "It WORKED", you mean that you successfully reported him and everyone who replied to him. Good for you. Extrapolating any other effect from your cause is... oversimplifying at best, but more likely to be just wrong.
        [ link to this | view in chronology ]
Anonymous Coward, 31 Aug 2015 @ 8:31am

Ha ha ha,

He copied it without the right. Hell hounds is calling.
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David, 31 Aug 2015 @ 8:52am

Oh man, that Bush painting
I can't blame the galleries that they did not provide Bush with a career that would have kept him out of politics.

That's so, so Godwin.
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- Uriel-238 (profile), 31 Aug 2015 @ 11:51am
  
  Worse then Göring
  As an online discussion grows longer, the probability of a comparison involving Nazis or Röhm approaches 1
  
  As an online discussion grows longer, the probability of a comparison involving Nazis or Göring approaches 1
  
  WWII historians have dissected at length what probably would have happened if Hitler were either assassinated or diverted from politics. The momentum of history would have kept things moving forward like an overloaded freight train.
  
  The line up of the Nationalsozialismus administration might have been different. It would be a stretch to suggest the Nuremberg laws would be repealed before the Endlösung was implemented. Maybe a more conservative plan for German expansionism might have been drawn up.
  
  And we'd be iconizing whichever leader as the ultimate evil to whom we compare our rivals when we're distraut. Hopefully he'd still have a silly moustache that we could mock.
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David, 31 Aug 2015 @ 8:59am

Can't the pope's parents sue Getty?
After all, Getty marketed a picture made from their very own creation.

And, uh, the pope would be his parents' copyright heir in case they are no longer around? Or is that lost in some sort of poperty vow? But then wouldn't the Vatican be the copyright holder to his holy likeness?
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Anonymous Coward, 31 Aug 2015 @ 9:21am

I believe what we're seeing here is the expression of a hitherto unknown gene. This copyright-extremist gene (or 'CE01') appears to be a behaviour modifier and those afflicted with it share a constellation of similar traits:
A fondness for white shoes;
A lack of discernible talent;
An utter lack of humor;
When startled, rather than putting up both hands palm out, the afflicted will put out one hand, palm up.
In an early test, Subject A was given a pebble and was told the copyright to pebbleness was transferred to him. Unfortunately, Subject A tried to assert copyright control to a nearby road crew, who were spreading gravel in preparation for a project. When admitted to hospital, the doctors had to perform a "pebblectomy" from a place where the sun seldom shines. Fearing further damage to Subject A, the experiment was terminated and the subject was given a dollar. Acceptance of payment seemed to result in the cessation of symptoms; however, when the subject was leaving the testing facility he remarked that the concrete walls contained a suspicious number of pebbles, and did we have a license for them? Subject A is currently resting comfortably in a facility in East Texas.

Further study of the CE01 gene is warranted, not only to relieve these horrible symptoms but because we could patent it and make money money MONEY!!! AH HAHAHAHAHAHA oh no.
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Anonymous Coward, 31 Aug 2015 @ 9:30am

What does the copyright cover?
The portrait eliminates the background and some shadows from the original photo. Presumably the pope selected his own clothing and gesture. What's left that copyright would cover? Anyone who saw that scene, in the photo or from a similar angle in person, could have painted it.
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Anonymous Coward, 31 Aug 2015 @ 9:58am

Bush whack
No-one sued Bush over his paintings because they would have to have been shown in court and they couldn't find any jurors, counsel or judge willing to face the ordeal. Court staff threatened to go on strike.
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Ninja (profile), 31 Aug 2015 @ 10:25am

Well, Putin now joins Jesus in the hall of fame of the defaced. I laughed hard.

As for the current high profile copyright dispute all I can say is God Bless America!
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- Anonymous Coward, 31 Aug 2015 @ 10:54pm
  
  Re:
  It's not a copyright dispute. There isn't even a lawyer. Just Buzzfeed and Mike going 'what if', and almost everybody here being too stupid to notice.
  [ link to this | view in chronology ]
Roger Strong (profile), 31 Aug 2015 @ 11:14am

Uh Oh.
When copyright law meets papal infallibility and papal supremacy, the MPAA, RIAA and copyright tolls will demand to be covered by similar doctrines.

Starting with renewed demands that heretics who question their doctrine be excommunicated from the internet.
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Anonymous Coward, 31 Aug 2015 @ 11:51am

Milou should just go back to the first version of his Papal Portrait, which is much easier to defend as 'transformative'.

(http://i.imgur.com/pw2ATQ9.jpg)
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Uriel-238 (profile), 31 Aug 2015 @ 11:54am

I thought this was a normal thing for art
Plenty of art is based on photos or on prior art.

Why would it be inappropriate for Milou to base a work off a photograph, even a copyrighted one? It's a sufficiently derivative work, yes?
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- jupiterkansas (profile), 31 Aug 2015 @ 1:19pm
  
  Re: I thought this was a normal thing for art
  It is a normal thing for art, just like suing is a normal thing for copyright holders.
  [ link to this | view in chronology ]
  - Uriel-238 (profile), 31 Aug 2015 @ 1:37pm
    
    Just checking.
    So we're getting to the point where trolling is pretty much the norm for IP.
    
    It's time to abolish IP. We really, really can't do worse.
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- Whatever (profile), 31 Aug 2015 @ 10:35pm
  
  Re: I thought this was a normal thing for art
  You hit the nail on the head, and pointed out the problem here: Nobody is suing anyone. That part of the story is an amplified supposin' made by another site and repeated here with a big more vigor.
  
  The reality is Getty has pointed out that their image was the basis. But since painting is not done by digitally manipulating an image but rather by looking at and reproducing certain aspects of an image, it's generally considered a transformative use.
  
  Many painters work from photographs, rending them in their own way as a painting.
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Anonymous Coward, 31 Aug 2015 @ 2:05pm

Even God can't stop copyright infringement!
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Anonymous Coward, 31 Aug 2015 @ 3:55pm

If Getty wins this case we all can say goodbye to interpretations of art f.e. music songs. Because the case here is that there is a picture and an artist transforms it into a painting. If that is against copyright law then things like playing the guitar part of a known song is illegal. Because even if you change things (in this case the background and the composition of the picture e.g. photo vs. paint) it would still mean that you are a criminal.

That in my opinion does kill so much if not all for what Art stands for. I can only hope the court will laugh at Getty Images and kick them out.
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- Anonymous Coward, 31 Aug 2015 @ 4:05pm
  
  Re:
  Assumed example:
  This video was released in 2011, the artist made an album with the original creator in 2013 so I guess this perfomance was at the time, according to the Getty Images example, illegal. It was a normal person transforming a known piece of art into something different or you might even say into something better, at least that is what I'd call it.
  
  ★ Ewan Dobson ★ Time 2 ★ [ DRUM COVER by Zack B ]
  https://youtu.be/mLgUbMXEk2w
  
  Funny how things work out.They made an album in 2013 and a 2nd album in 2015. Yeah.. the whole transforming art thing is just a bad idea *cough*
  [ link to this | view in chronology ]
Drawoc Suomynona (profile), 1 Sep 2015 @ 7:18am

"And most normal people would agree..." - I believe that's a direct quote from one of my favorite books "How to alienate people and lose friends, and even piss off the people who agree with you".
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Anonymous Coward, 3 Sep 2015 @ 7:27am

I am on the fence on this issue
I don't really know what to think about a painter using someone else's photograph to create their painting. I don't see it as too transformative in this case as the only thing left out was the background and nothing was added. The pose, shadowing, etc are all there. But if we say that paintings cannot be based on other's photos, then only a painter who was there, took their own photograph or paid a license to another photographer could make this painting. Odds are, a license would be prohibitively expensive too.

I do wonder, if the shoe was on the other foot, and a photographer took a photo of a painting and "transformed" it, how the painter would react.
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Mike Grossman, 2 May 2017 @ 8:23am

OMG I cannot stop laughing Mr Bush
A tough subject to come to grips with but the humour is well worth the read.
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