Legal Question in Technology Law in Arizona

internet photos to graphics

Hi I am designing logos and wondered if it is legal to use random photos..create a drawing of the photo and then turn it into a graphic for selling on a T-shirt? without paying a fee to the photographer...?

Asked on 2/18/09, 12:21 pm

2 Answers from Attorneys

Andrew Lahser Law Office of Andrew P. Lahser, PLC
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Re: internet photos to graphics

Since we don't know each other, this answer just describes what sophisticated small business people do in situations like what you describe. This is not intended to be legal advise, and, cannot be legal advice, because I don't know you, your real business situation, and I haven't seen your work. So, I can't apply the facts of your situation to the law.

The most straightforward way to use someone else's work is to get their permission. Asking permission can be a great thing. You can introduce your self to someone new. You can explain how their work has influenced and motivated you. You can show how your respect other people's creativity. When you have someone's permission, than you will have the best legal predictability.

Getting permission is not always possible: you may not be able to find the creator, the creator may be unresponsive, or you may not be able to figure out who current has the right to give you permission.

When you uses someone else's work to create a new work, these can sometimes be "derivative works". A derivative work requires the permission from the preexisting work. To determine if a work is "derivative", the law will consider the amount of originality in the preexisting work, the amount of originality in the derivative work, whether any aspect may be in the public domain, and other factors. The law defines artistic reproductions as an example of derivative work. See 17 USC 101. Many times, even lawyers may disagree about whether a work is original or derivative.

From your two sentence question, it is impossible to know whether you are exercising the kind of independent artistic and creative judgment needed to create an independent work. You may wish to work with an experienced copyright lawyer. It may be possible, if you have examples of your work, to get some type of preliminary advice during an initial consultation.

The other option may be to restrict your work to those cases where you can either 1) get permission; 2) use photos where you can pay to obtain rights, and hopefully, indemnification for infringement; 3) use photos that you take yourself; or 4) use photos known to be in the public domain.

Finally, you should obtain a good business insurance policy. These policies vary. You should consider many policies to find one that will protect you from unintentional infringement, just ask insurance agents for a sample of the type of policy they would use for your type of business. Again, working with an experienced lawyer to help find the best policy for your situation can be helpful.

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2/18/09, 1:05 pm
Edward Hoffman Law Offices of Edward A. Hoffman
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Re: internet photos to graphics

You would have to work out an agreement with whoever owns the copyright. That person may or may not be the photographer.

Some older photos are no longer protected by copyright. Some newer ones are in the public domain, which means anyone can use them. Unless you have specific information to the contrary, you should presume that any photo you find is copyrighted.

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2/18/09, 4:05 pm

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