Work Based on a Copyrighted Photo - Derivative Work

[raeleth]

My friend has created an artwork based on a photograph. Here is the original:


And here is her work:


It is a cross stitch featuring the right eye of the person in the original photo. Does my friend need the original photographer's permission to display her work in her exhibition?

Not sure if these details are relevant, but the exhibition is for-profit, and she will be giving credit to the photographer and the performer that the photo is of.

Thank you very much for your time

[flyingron]

She needed the original photographers permission to even create the work.

Credit or the nature of the exhibition don't change the fact that it is an infringement.

[Mr. Knowitall]

These issues were in the news not so long ago in relation to Shepard Fairey's "Hope" portrait of then-Candidate Obama. The contention of the AP was that the Fairey portrait plagiarized the artistic elements of their photograph of Obama without providing attribution and in excess of "fair use". It's not the case that you can't base artwork on a photograph without permission, but there are artistic elements to photography. You paint the Eiffel Tower from a photograph? Yeah, you and about a million other people. But as you add additional elements from the photo (e.g., the lighting, shadows, clouds, people in the foreground, etc.) you increase the potential for intruding into the photographer's composition and artistic elements of the shot - the parts protected by copyright. With Fairey's painting, the original photograph was easily identifiable from the painting and that made it much more difficult to try to claim fair use - and even some of his defenders on the "fair use" front assert that he should have given proper attribution to the photograph. He ended up settling the case.

[raeleth]

Thank you for your replies.

I have one more question, I just discovered that the photographer in question is in Italy and my friend's exhibition is here in New Zealand. Does this change anything? Does their copyright law affect us?

[Mr. Knowitall]

You will need to investigate the laws of the countries involved. As you were told when you posted, this is a U.S. forum and laws vary by country.

[flyingron]

Italy, the US, and NZ are all signatories of the Berne convention which gives the copyright owner pretty much rights in all three.

[Mr. Knowitall]

"Fair use" is U.S. statutory law.

[LyonLegal]

Italy, the US, and NZ are all signatories of the Berne convention which gives the copyright owner pretty much rights in all three.

The Berne Convention means if a work is under copyright in one country, it's under copyright in any signatory country. It does not change what law applies. IF the original work was under copyright in Italy, then it is under copyright in New Zealand, and New Zealand law controls its use there.
So you do have to know some Italian copyright law just to know if it's protected at all. Then you have to know New Zealand copyright law to know what that means you can or cannot do with it.