This is a scenario that I had to think about before making my judgement. It is hard for me to move from the artists point of view to the point of view of the user. My first reaction to this article and images was that this was definitely a violation of copyright, but after reading, I changed my mind that this image used on the onesie, although very similar to the picture, had been transformed enough that it would be fair for the company to use it. It is very possible that the image was used, but Gap used the image in a very different context and changed the image and color of the image enough that it could be considered a new image, and therefore, usable. I am sure there are many similar images of those cars available that it is also possible that Gap did not use it. The only evidence is the line images on the windshield, but I do not feel that Gap was taking away from the original image if it was indeed used. I would also be curious to know what is in flickr's terms of use information that may protect either party.
If this was used in a classroom I also agree that this could fall under the vise of fair use. Again, if say a teacher asked students to find images and transform them for artistic purposes, then it would be fair if the image was transformed enough that it created a new context and image. It would also matter if the teacher was using the assignment for teachable moments.
Actually, it was a violation, but the design company was in India - so, again, the international nature of the violation made it difficult to purse. It is my understanding that Gap did finally offer the photographer an undisclosed good will settlement.
ReplyDelete