Images as derivative works

Watch where you aim the camera – or rather, where you upload those memories of little Gertrude squeezing her Jabba the Hut doll. Even a photograph of a temporary art installation in Italy or Paraguay could land you in trouble. Yes, you pushed the shutter and thus own the copyright on the image. But make sure no one else holds rights on a creative work within it: then you need permission.

Before you panic, check out Wikimedia's great breakdown. Down the page, its casebook walks you through various scenarios, from sculptures to cave paintings and souvenir replicas of the Venus de Milo.

US law – and most first-world nations' – permits artists and photographers to sell representations of structures permanently in the public view. Egypt, however, recently tried to copyright the Sphinx and Giza's pyramids in a move that sparked much hilarity. Even the bill's author – Ashraf El Ashmawi, legal consultant to the antiquities council – finally admitted he wouldn't take the global witch-hunt to a micro level. "If you have a small shop and your trade is very limited, I will not take money from you," he told National Geographic.

"But if you are a big company, like some of these Chinese companies that make a lot of money from the replicas of antiquities ... according to the law, I can take the fees."

Thanks, fella. I'm glad to know blogger Marie Javins won't be extradited for posting her obligatory sightseeing snaps...

Some areas, like Peleliu (one of Palau's 16 states), may try to levy a commercial photography license on anyone associated with the media, however vaguely. On my last trip there, I was presented with a surprise $50 permit, instead of the usual $3 day-visitor one. I explained I wasn't shooting art for my Sport Diver article – or, indeed, any other at that rate. I offered to leave my cameras in the government office even. The bureaucrat insisted all journalists had to pay, but couldn't accept my credit card on site (the island's pretty rough and ready). Would I swing by the office in Koror?

Like hell.

(I did make a deal with Des, my local guide, that he would email me if his company might be fined for this, then I'd pay the tab. So far, so good.)

Anyway, as a blogger, you may wish to fly under the radar in some areas to avoid these hassles. An official on a five-square-mile state like Peleliu (pop 700) may not understand the nuances of "diary-style blog" versus, say, shooting stock for Getty.

The Mona Lisa with a Mustache

Derivative works also stir up plenty of migraines among the geekerati. These are creations that include major, copyright-protected elements from another work.

Read here about a case lost by the artist Jeff Koons, who told artisans to transform a greeting card into four sculptures, which sold for $367,000. Unfortunately, he didn't gain permission from Photographer Art Rogers, who'd snapped the couple holding eight puppies.

So what does this mean for bloggers? Mainly be careful when compositing together illustrations – and vigilant when your material is thus remixed. Fair use allows you to write a Buffy the Vampire Slayer spoof and publish a collage of images ripped from newspapers, if you can find any these days ... The exemption also permits Google to run thumbnails of your images in its search engine, thanks to the Perfect 10 ruling. Judges deemed this "transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use."

The most famous example of this is Marcel Duchamp's parody of the Mona Lisa. He added facial hair and the caption L.H.O.O.Q, also the work's title (it translates as "she has a hot tail"). He transformed a cult icon into an object of ridicule to critique the bourgeoisie.

For a something to be derivative and kosher, it must display originality of its own, containing sufficient new expression over and above the earlier work's. As Judge Pierre N. Leval noted in a landmark Harvard Law Review article: "Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

We'll talk more about piracy, copyright and protection week ten.

Permission to publish: the photo release

The green-light to use a person's image is called a “model release” or "photo release". Advertising gigs – and some editorial ones – often demand this paperwork and now some uber-careful bloggers are following suit. Especially those who hope to sell images to stock or microstock agencies.

Here's a very barebones example:

Date

Photographer's name

I give to ______________ the irrevocable right to use my name and any photographic or illustrative depiction of me in all forms and for all purposes associated with the publication or transmission of works, including advertising and promotion. I waive the right to inspect or approve the finished version(s) and any requirement for payment.

Name:
Address:
Phone:
Signature:
Guardian Signature for minors:

Sample forms – and translations – are available online from Getty, among other agencies.