Copyright laws, which country's laws apply when?

[kerstin-orion.livejournal.com]

(I'm writing not as a moderator but as a member.)

I recently found a 'realistic' artist on FA who paints over/traces photos, without permission or credit. I wouldn't have stuck my nose in, but they do this with commissions, not just their personal art. (Not that it's legal to trace if it's personal art, but it peeves me when commissioners unknowingly pay for traced art...)

When I mentioned politely that this was against copyright laws, the artist said, 'Not in Australia. I have done extensive research into my country's copyright laws, etc., etc...'.

My limited internet research into Australian copyright law did not seem to agree with the artist's claim. However, I only spent an hour or so researching this. Additionally, I've read/heard that where internet image hosting is concerned, the laws of the country where the servers reside take precedence, but again, I am not certain.

So, my questions are:

1. If an artist lives in one country, but posts their art on a site with servers based in another country, whose copyright laws apply?

2. More specifically, does Australia actually allow tracing/painting precisely over photographs without permission?

(Not naming this artist, yet, until I know more about the copyright laws. Also because, while I am pretty certain much of their gallery is traced, I was only able to locate a single exact art-to-photo match. The rest of their gallery looks like this image, though, with slightly wonky/frankensteined anatomy, but I couldn't find the source photos.)

EDIT: I am referring purely to the artist tracing photos which do not belong to them or which are not 'free stock'. The one example I found expressly stated that the photographer gave no permission for the photo to be used in any way.

EDIT TWO: The artist's replies when I linked the copied photo:

First:
I have fully researched copyright before and discovered it's not illegal, at least in this country, to draw from photographs because of the difference in mediums. Thank you for the link however, it was an older photo reference and I didn't know the photographer. I will remove the image because I don't wish to break any copyright laws that other countries have in place.

Second (after I asked which country they were in):
I live in Australia ;) I had to do a lot of research into copyright laws once because a company stole and published my artwork without my consent and I didn't get anything back from it, and during my research I did come across these types of laws. In one case, somebody actually copied somebody else's painting, and the artist tried to sue them but the person was proven innocent because it was a 'different style'. It's a real grey area though, I guess it would depend on the actual case.

Comments

[uozlulu.livejournal.com]

I think the server location of the hosting website dictates the laws that website has to abide by. For example, Deviantart has its servers in America and so its TOS is structured to reflect American law.

The Australian Copyright Council official website (http://www.copyright.org.au/) might help you. I'm not sure if you utilized them during your initial search or not. You might want to search their site via Google (ex search: site:copyrite.org.au international photography OR photographs OR photographer)

[kerstin-orion.livejournal.com]

Thanks. That's the site I spent the most time on, which is where it seemed to indicate that the artist is misinterpreting the law (or their use of the photos...).

[uozlulu.livejournal.com]

Or simply ignoring it and claiming false knowledge to make you back down and go away. Kind of a "you don't come from my country, so of course you wouldn't know so I can tell you anything" attitude.

[obsidianwolfess.livejournal.com]

I agree with the above.

[delphinios.livejournal.com]

Also, laws or no... such things are quite against FA's TOS.

[kerstin-orion.livejournal.com]

That's very true. I should point that out to them. XD

Of course, they took down the single instance I could find the source for (but not before I screen-capped it).

Not sure there's much more I can do since I can't find any other sources for their pics. I was just hoping to have some copyright law info for them.

[lilenth.livejournal.com]

The server's place of residence is the law that supersedes all since the deed is being done on them. That's why e621.net got in trouble for hosting cub porn when it was hosted in Germany because German law considers fictional child porn to be the same or nearly the same as child porn with real children.

Australia has no such law as far as I am aware, the Berne convention to which Australia is a signatory nation is the overriding law and that does not permit it therefore Australia cannot have laws that contradict that (or if it does then the Berne convention overrides them automatically). Chances are the person is just yet another person who poorly researched, came across fair dealing (or possibly fair use, most people don't realise that only applies in the US) as it would be in Australia and decided that fair dealing (or fair use) applied when it would not.

[snippetchick.livejournal.com]

THIS.

I would also like to add that Australia doesn't have 'fair use' provisions in copyright law to my knowledge.

[lilenth.livejournal.com]

It has fair dealing instead, they're very similar in concept though.

[oceandezignz.livejournal.com]

Like Delphinios said, regardless of the legality in their country (of which such legality is dubious at best), FA's ToS/AUP states you can't upload traced artwork without citing references (I'd try to access the AUP but FA is 502ing me). That's how Star was banned the first time around I believe.

[ocelotish]

I'm partially wondering about the pictures in question. If you look in the right places you can find photos you can use for any purpose, including commercial ones.

[kerstin-orion.livejournal.com]

The one I did find the source for, specifically stated "Do not use for commercial purposes, etc." Sadly, my Google skills are failing me and I can't find any more matches. There are just too many pictures of canids out there! XD

[kerstin-orion.livejournal.com]

But you are correct that they could also be using free-use photos (brain-no-worky at the moment so I can't think of the proper phrasing).

[ocelotish]

Well, if you found a commission piece where the stock was free-use and it was a commission that's pretty cut and dry! I mean it might be different if it was just a tiny portion, but that's not the case here.

[lilenth.livejournal.com]

Unfortunately typically people don't use stock (why I have no idea) or if they do, they just swipe it rather than find free stock or pay for the license, and that's without all the people who do not check and assume every site that offers "renders" is a legit stock site even when it's blatantly offering stuff for stock that there is no way that they have the right to grant permission to use.

[ocelotish]

Well, I certainly use stock/my own photos for a lot of my stuff (as do others, I'm sure), so I think it's an important point to bring up, particularly in a general advice post like this one. Using things like morguefile is completely legitimate, and I'd be very miffed if I got called out for breaking copyright law when I didn't.

[kerstin-orion.livejournal.com]

Indeed, they could certainly be using their own photos and free stock. Since I can't find any other matches, that may be the case.

The wording of their reply to me via FA notes, however, seemed to indicate they "paint over" whichever photos they wish, sans permission, since Australian copyright law (according to the artist) allows for it. Darn FA for being down right now, or I'd quote the notes! XD

I'm mainly hoping for specific copyright references to point out to them, since I can't find other matches and copyright law info in the internet is mostly rather general.

[ocelotish]

You might try tineye if the paintings are close to the photos. I can't promise you it'll work, but it can't hurt!

[kerstin-orion.livejournal.com]

I oughta do that. I'll have to crop the bits and pieces off (animal heads attached to human bodies) but it could work.

(oooh, and they make an add-on for Firefox!)

[ocelotish]

Hmm... there may be some issue there where she's not using enough of the photo for it to count as infringement (like you might be able to use it for a collage). Unfortunately, I'm not an expert on copyright stuff. :/ Sorry I can't be of more help.

[lilenth.livejournal.com]

That's good for you, unfortunately you're one of the minority not the majority.

The amount of people who think google is a stock resource is unbelieveable, hell even some big name artists have been caught doing that. Offhand, I'd estimate up to 9 out of 10 people use "stock" which isn't stock or commercial licensed which they haven't actually purchased either deliberately or through ignorance.

I think people in general need to be aware of what is stock, what is a legit stock site, how commercial stock works and the rules that may come attached to stock since it's rarely an entirely free resource.

[ocelotish]

I think you need to be aware that just because most people don't use stock properly doesn't necessarily mean that any particular artist who uses photos is doing so incorrectly. I simply called out your assumption, which certainly isn't true in all cases. This is a general advice post, and until the edit, could have been about any artist using photos. If someone in a similar situation were to come across it, it would be important to verify that the artist is doing something illegal. Also, things like you said further stigmatizes those of us who use photos correctly.

[lilenth.livejournal.com]

I never said it did mean that, just that commonly people have little idea of what 'stock' is or how it works.

There is no stigma to using photos correctly, the only people I see who suffer from any kind of adverse reaction are those who don't use them correctly and even then there are still those who support even seriously obvious tealeafs.

[amarafox.livejournal.com]

As a designer having worked in the industry, artists also have to read the TOS for royalty free or cheap stock. Some sites, like istockphoto.com etc, don't allow derivative works of the photography and they must be used as is. I think if an artist is pretty much copying said photo for a commission it is OK, but once they start selling prints of that it can slip into an ambiguous gray area.

That being said, paying for or using free/creative commons commercial use/public domain or taking your own photos is a much much smarter way to go when doing commissions.

[foxhack.livejournal.com]

I didn't even know there were such things as "free stock photos."

Where can I find these?

[kerstin-orion.livejournal.com]

I know I've seen stock photos on DA that say "you can use this for anything, just credit me and link back to my original".

Other than that, I'm not sure, since I've never searched for free stock. XD

[kakabel.livejournal.com]

Getty Images has "royalty Free" options, but you either have to credit Getty Images (if using as a reference photo for artwork)or use it with the water mark. to use a watermark FREE one, you have to pay for it.
*shrugs*

There's another whole kettle of fish over using images from folders set for public use on image sharing places like flikr and photobucket.

And I get lost over in the "public domain" crap. o_O

The main rule of thumb that most artists I know use, is the 30% rule. Change something MORE than 30% and it's yours. It's just skeevey NOT to credit the "inspiration" piece.
So collaging or even changing the medium is changing it more than 30%. And that goes for manips too.

[ocelotish]

You can do a creative commons search, and I like morguefile. :)

[anjila.livejournal.com]

I like to use http://www.sxc.hu/

I've found lots of handy stock on there, just make sure you completely read the "Availability" section at the bottom of each photo. It tells you the conditions of using the stock.

There are more high-quality stock photos on the site that cost a little bit of cash, but the free ones are still good!

[poprock-grey.livejournal.com]

It may be best to let the name be seen so everyone on here can help you research the art.

[kerstin-orion.livejournal.com]

I'd thought about that, but I'm hesitant to bring their name up here because what I have is mostly speculation, with only one verified trace match.

[kinas.livejournal.com]

I'm Australian. Never heard of that being legal xD

Tada, linkage:
http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_Wheniscopyrightinfringed

I do hope I've gotten it right.

[kerstin-orion.livejournal.com]

Thanks for the link to another site backing me up!

[thaily.livejournal.com]

"Additionally, I've read/heard that where internet image hosting is concerned, the laws of the country where the servers reside take precedence, but again, I am not certain."

This.
In most countries it's legal to make depictions of swastikas, but when VCL had a German mirror, depictions of swastikas were banned from the archive because German law forbids them.

Also, if you'll excuse the capslock of rage, FREE STOCK OFTEN ISN'T!
I've reported stock-photo-mangling to have people go "Huhu, Thaily doesn't know what stock photos are!" because they're too dumb to realize that sites who provide stock photos REQUIRE PAYMENT BEFORE YOU HAVE THE RIGHT TO USE IT HOWEVER YOU PLEASE!
And re-selling the image or derivatives (and a tracing of a photo is a derivate product, also not allowed sans permission in most civilized countries, Australia likely being one of them) thereof usually isn't included in the contract, so this photo-tracer would still be shit out of luck.

There's a few people who offer photos for free, but they usually also have restrictions, such as no commercial use.

In my opinion, they're full of shit.

[foxxieangel.livejournal.com]

I've found very few stock images that are free for commercial use, they usually require a vast sum of money to use. Most stock photo sites have watermarks over the sample image to prevent usage. It's amazing how many commercial images have been found to still have the watermarks lol.

[amarafox.livejournal.com]

I worked for a company and I found a previous designer had done this. I scrambled to fix it, using cheap/free stock and the like. One of the pieces swiped was a RIGHTS MANAGED (The expensive ones you're talking about) photo. The site owner had gotten a cease and desist letter. I replaced the photo, they bitched and on my last day of the job I was forced to put all the illegal images back. Thanks for sticking up for the law, boss :|

I am no longer in the design industry, trying to explain copyright law to clients was starting to wear on me.

[kerstin-orion.livejournal.com]

That -does- sound frustrating. I can believe it, though. I've heard all sorts of horror stories from my friend who works in a design/print shop.

[rusti-knight.livejournal.com]

I work building ads for a paper and we get this all the time. Ad sales manager and publisher didn't seem too worried about until a couple of months ago we got a pretty letter and a $1500 fine to go with it over a photo we had on our website that one of our advertisers sent us.

Fortunately, because they had provided the photo (therefore, we assumed they had permission to use it), we were able to send the bill along to them, but afterward, if one of us designers questions something, they pay a hell of a lot more attention.

[myenia.livejournal.com]

Not to avoid the original point- but legal or not....even if the artist is using their own photos or legal-to-use photos, it is wrong to do commissions this way unless it is clearly advertised as such. Otherwise it is false advertising and is dishonesty to their customers, who are paying for something painted and getting something copied.

[obsidianwolfess.livejournal.com]

You said exactly what I was going to. :3

[solalia.livejournal.com]

I totally agree. This is my biggest issue with people who overpaint. If they say that's what they're doing, fine. If they say they're painting it from scratch ala Linda Bergkvist and then you find the magazine cover it's painted on top of, at the very least it makes them a liar and a highly unethical "professional" artist.

Plus, I just don't think it's fair. Aspiring artists look at it and go "I want to paint like that!" but the person they idolize isn't even really painting the images.

[maddogairpirate.livejournal.com]

International becomes a big mess in a situation like this, I would think, and short of a major transaction, I'm not sure how likely it is that even were you correct (and I'm pretty sure you are, that sounds like bull about Australia).

So in the end, best thing would be to mark the person beware if it can be shown such person made the comments and they are incorrect.

[likeshine.livejournal.com]

is this artist currently running an advertisement on FA?

[kerstin-orion.livejournal.com]

Not sure. Since I browse with Firefox (with AdBlock), or on my phone (which doesn't display animated images), I don't usually see the ads.

[likeshine.livejournal.com]

oh, just curious! i have a pretty good idea of who this might be regardless.

[shinigamigirl.livejournal.com]

So do I, I think. :/

[lilenth.livejournal.com]

Their replies sound like they're ill informed. One of the tests of fair dealing is the level of transformation, I've yet to come across any court that would rule that merely changing the medium is enough to count as transformative.

The case they're claiming as their precedent? Does not exist as far as I'm aware. I would be willing to bet they're referring to a case that I do know of, they just didn't understand the ruling, the case in question established that paintings of public domain photographs could not themselves be copyrighted due to being unoriginal.

Also on top of the initial copyright infringement they'd be commiting a violation of the moral rights copyright laws if they're not saying who did the original.