Fly By Drawing

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Here’s something interesting and strange that has never happened to me before. I got a comment this morning from Alex Wild, a photographer who does a lot of super-close-up images of insects. Apparently, and unbeknownst to me, he took the photo of the fly that I used to create the fly drawing in my title panel (the green thing in this post.) He objected to my using this image without permission and I fully understand his concern, however, I don’t think mine is close enough to his to warrant concern. Yes, I used his image as reference to create my fly sketch, but I think mine is loose enough to be considered a translation rather than a copy. He feels otherwise, and that’s understandable.

In deference to Mr. Wild, a very talented photographer indeed, I offer both for comparison here and happily direct you to his web site so you can see more of his work. He’s had issues with artists literally copying his photos as works of art before, I gather, so it is natural for him to be on the watch for this kind of thing. It’s never my intention to steal so I apologize for any offense taken. Thanks for your consideration, Alex!

fly comparison

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75 thoughts on “Fly By Drawing

  1. Woah, so how does that work? Will he start getting a slice of your monies for whenever that particular comic with that logo illustration is used?

    • No. He’s agreed not to pursue it as a legal issue and chances are it wouldn’t go anywhere anyway. Plus, my title panels don’t print in many markets and it’s pretty impossible to say I make money from the title panel. I barely make any from the cartoons. :o)

  2. You were certainly within your boundaries, and your pic looks great! I note the legs hairs and wings as being unique to you style and far enough away from the original to be very much a reference and not a copy. It’s not as if you traced the picture.

    And yes, he has some damn good work as well!

    • Unfortunately, it IS as if he traced the photo. I opened it up in Photoshop, created a second layer, and transformed to see if the two images aligned. Apart from an adjustment to the back leg, they do – so he may have digitally traced. If so, that’s what’s bugging his photographer friend.

      Now, I’m not saying that Dan’s image is simply following the outline of the original photo. There was an actual legal battle about just that in Texas a few years ago. They wanted a cheap way to design a new series of registration stickers for vehicles, so they took a well-known western photographer’s images without permission, and simply had inmates with no real artistic training create silhouettes by outlining and filling in black. They then tried to pay the photographer nothing while providing stickers using his iconic imagery to 4.5 million people.

      Here’s the 2010 story from BoingBoing.

      http://boingboing.net/2010/11/09/photographer-i-got-g.html

      That’s not what Dan did. He made conscious artistic choices about line weight and internal line placement. He decided in his illustration how much detail to retain. The original fly photo itself is simply a 3/4 view of that type of fly (I think a carrion fly). While Dan’s outline is identifiable as the fly from the photo, it could easily have been any similar 3/4 shot of the same type of fly. I believe Dan’s drawing meets the requirements for Fair Use because it does meet the standards set: different context and “transformative nature”.

      • P.S. First here’s a correction. I was really tired when I wrote the above comment – it’s not a carrion fly in the photo, but a house fly. Carrion flies are the ones also called “green bottle flies” and are green metallic. Sorry about that!

        Also, I should have mentioned that I’m really impressed with the way that both you guys have handled the situation. Our courts are full of individual issues that could have been handled one-on-one. I’m glad that Alex recognizes no lost value. In fact, he may end up benefitting (much like Campbell’s did) here. People who otherwise wouldn’t have known his name, may now seek out his site and his excellent photography. In the end, this may be free advertising with no lasting harm to the friendship.

        In all, this is a very good result!

        • I agree. Alex is a good guy and a great photographer. And I learned quite a bit more about “fair use,” without any bruises. :o)

  3. So, a guy takes a picture of a fly from a specific angle and then suddenly no one is permitted to draw that? The way I see it, photographers of photos like that are NOT artists, since they are NOT creating anything, really. The whole process of photography here is just making a copy of some actual object. And you are free not to agree with me, yet I explained why I hate this kind of photography. So the photographer is copying the whole picture from nature, and it’s cool, so an artist copying anatomy of a fly from a picture like that should not be harassed either. Love your comics, and good luck!

    • A statement like that shows a complete lack of knowledge of the process of creating a photograph. I assume you’re a person who has only ever snapped pics on a camera phone, maybe processed some of them through an app to give them an “artsy” look, and have never taken the time to actually compose an image. Try not to comment on subjects that you have no knowledge of, it only hilights your ignorance.

    • Hold on a sec! Photographers spend a lot of money on the equipment that -can- produce quality images. They enhance lighting and staging. They go to hard to get to places to capture images that few others would or could. With the time, trouble and expense they go through to create their images they are entitled to the same copyright protection as any painter, illustrator, cartoonist.

      That said, I think Dan’s drawing is not infringing on Mr. Wild’s image. There is no confusion between the two, Dan did not copy anything unique from Mr. Wild’s (unless that pose, or that fly is unique and unusual).

  4. My beef is that he called your sketch a ‘tracing” _ as if you were like me: a no-talent artist who resorts to tracing a prior art and then tweaking ever so slightly for some sort of gain. [Good thing I work as a chemist instead of as an artist.]

    As for being transformative, yeah . . .

    . . . his is a realistic 2D interpretation via photography that achieves a visage of depth with a lack of focus while yours has more human emotion / bias about the bug in a sci-fi kinda way when you used the pseudo-3D shadowing and the (garish) green background. I believe Piraro has used this kind of imagery technique before.

    Besides, how can someone “copy” by hand something that’s partially out of focus? And with such detail!

    I dunno. Maybe Wild wanted you (Piraro) to keep the colors more true to form? And then change approximately 50% of the body with steampunkery to conform to his boundaries?

    And as a photographer, how does Wild see himself out side of the “wishfully-thinking art community” as he requests some form of credit? As if he could micro-manage the distribution of his work. [lol]

    • I wanted Piraro check verify it would be ok to make a derivative work, and under what conditions. In this instance, I’d have been happy with a simple acknowledgement in the accompanying blog as he gives here. In the unlikely event that wasn’t acceptable to him, he could find another fly image to use as a reference.

      After all, if my fly photo is generic and valueless, he could just as well use another.

      • Damn Alex, it really seems like no matter HOW gracious, deferential, and complimentary to you and your work Piraro is, you insist on pressing your very dubious point. What could you possibly have to gain here, other than feeding your ego? Is your ego so weak as to need this sort of feeding? Do you really consider this fly to be a idiosyncratic arrangement of materials reflecting a very specific internal mood or state of mind?? I think it’s just a very high-quality record of what a fly looks like. I don’t perceive any actual artist value or intent (but I could be missing something). Personally, I feel no true “artist” would ever have raised such a concern. I don’t recall Campbell’s Soup or Marilyn Monroe taking Andy Warhol to court. You might also consider the work of Sherrie Levine, who photographed the photographs of Walter Evans directly from an art catalog, and then showed her photographs as original works, in her influential 1980 show “After Walker Evans”. Most artists considered her work challenging if not groundbreaking, since it made a point entirely removed from the meanings of Evans’ depression-era photos, and considered it an original work in its own right. However, the Evans estate disagreed, but wound up acquiring her photos rather than taking her to court. Is a photograph of a photograph a derivative work? It’s not nearly so cut-and-dried as the undereducated mind might make it out to be.

        • You’re missing the point of copyright law, which is not primarily to protect creative or artistic vision.

          Rather, copyright is to encourage the production of useful, but copyable, works by allowing their creators a means of sustainable production. Of course my fly photo is not intended as expressive art- it is basically an illustration- but that’s beside the point. Copyright law allows me to be a photographer professionally, otherwise I’d have to take up a day job and wouldn’t have the time to be able to make the photographs. No copyright, no fly image.

        • Actually Campbell Soup considering suing Mr. Warhol and decided to take the wait and see approach because he was providing them with additional advertising for their product – for free. Their concern was more for trademark enforcement than copyright infringement because they need to be able to control the manner in which their image is portrayed. Here it is the opposite because all Mr. Wild only asking for is credit so that he benefits from the traffic and interest. Mr. Warhol was in fact sued multiple times by several people for stealing their work and it is widely accepted that his violations were what caused the line to be drawn to say this is out of line and wrong.

          It is very disheartening to see posts such as yours roasting an artist when both artists involved seem to have resolved their differences amicably.

  5. So then, what are the guidelines for cartoonists when it comes to this type of thing… using photos for references when drawing? You’ve done enough parody cartoons using various characters from all kinds of properties, especially from pop and geek culture; can you be sued for using their characters? Or is it okay if you vary it enough in your style that it only hints at being the pop culture character you’re referring to? If you render Iron Man ironing clothes, can then Marvel contact you and tell you to quit if they are offended by that? It seems pretty subjective to me. As evident from this particular instance with Mr. Wild, is he in a particular mood that it set him off to see his photo referenced, or does he purposely trudge through the internet and various mediums to see who’s been referencing his photos? In this case where it’s drawn, I think I’d be flattered. Certainly your cartoons are easier target than most art, because it is so saturated across the world in so many venues… especially now with the internet and social media. You’re highly visible.

    What chance is there for a budding cartoonist like myself? Are there standardized guidelines for parody cartoons, as far as how far a likeness one can come close to… or is it at the emotional whim of the source materials creator if he or she just happens to have had a bad day. I think there’s one thing, for example, if I copied your cartoon right down to the gag line and tried peddling it as my own. I’ve seen some examples of that with other cartoonists such as See Mike Draw who displayed a cartoon on his site that was very similar–even in style and the gag– to his, which could be interpreted as copying. So where is the line? Recently I’ve been studying various cartooning styles, mimicking some of them in my sketch pad. Trying to find my own voice and style. I’d like to not be discouraged by this… but how does one proceed forward if you have walk on egg shells around some more conservative minded (it’s all about me) persons who are only out for themselves? I understand protecting one’s artistic integrity and artistic property in a competitive industry: isn’t there enough to go around!!!

    • Regarding using established, trademarked characters in art: Basically, there are two things you must be aware of. 1.Making it an obvious parody…You can use someone else’s image of any kind––photo, painting, trademarked character, logo, etc. as long as it is obvious that the art you create is a parody and there is no danger of it being mistaken by the public as the original property. You can draw Mickey Mouse with a disgusting rat’s body and call it parody, but if you draw a Mickey that looks like it’s right out of a Disney publication but have him smoking a joint, you’ve not changed it enough to make it an obvious parody and you’re likely in trouble. 2. You must be parodying that property…In the case of my recent Iron Man cartoon, I’m allowed to draw an image of Iron Man to parody Iron Man, but I can’t use Iron Man for some other use that has nothing to do with lampooning Iron Man. Perfect example: I once wrote and illustrated a book about George W. Bush in which his character was the Curious George monkey. A big NY publisher loved it and wanted to give it a green light but their legal department said that I could use a copyrighted character like Curious George to parody Curious George, but not to parody someone else, in this case the president. Varying your drawing style from the original character hasn’t much to do with parody laws in this kind of thing, but it’s always a good idea.

      Your question about who you can assume will sue you is something you can’t know. It varies wildly. If there’s no money it, very few will sue and the most you will get is a letter from a lawyer telling you to stop it now, remove it from your web site, whatever. If you make a fortune using someone else’s image––like selling millions of T-shirts with Calvin and Hobbes on them (even if you redrew them in your own style) you very likely will get sued and lose. It’s bad form to steal other people’s work whether you’re making money from it or not, of course. In the case of Mr. Wild’s fly photo, if I’d run the actual photo through a computer filter to “change” it a bit, and altered the colors, that’s still image theft and I would never attempt such a thing. On the other hand, the fact that I drew my image by hand, fairly loosely, using his photo as a guide makes it a gray area. At that point, the powers-that-be would have to decide “how” similar it was. That’s where the process becomes very subjective.

      Regarding your style, don’t worry about copying other people’s work to gain your own style. Styles are not copyrightable for the most part. Tom Richmond’s work for MAD magazine is in the exact style of their longtime, revered caricaturist, Mort Drucker, but it’s not a problem. In fact, it’s why they hired him. Your own style will morph and change over time as you go through the process and while people may be able to see the influence of whomever you admire, it won’t be seen as plagiarism unless you’re a really good mimmick. That said, there is always a thin line between influence and plagiarism. :o)

      Hopes this helps. I’m guessing by now you’ve found all kinds of official information on the subject, but the points above are ones I’ve had a little experience with in my career.

      • Actually, the Fair Use doctrine allows for the use of material if there a substantial difference in context and there is a “transformative nature” to the use. Both of those qualities exist in Mr Piraro’s drawing, but the issue is in how much. Likewise, the doctrine is concerned with how much of the original was used; if there is substantial similarity — as measured by the average member of the viewing public — then there is a violation of the copyright. While the issue of using a photo as a visual reference to free-hand draw a ‘copy’ is not one of legality, it does factor into the similarity measurement.

        The real issue is not how much money is made from the use, but rather the effect on the profitability of the original work — Campbell’s Soup chose not to sue over the use of its can’s image by Mr Warhol because the painting actually drove up sales of tomato soup, thus eliminating a potential “harm” claim. Unfortunately, the effect on the profitability of the primary work is not something that is easily measured prior to the publication of the secondary work, thus it is always better to consult an expert prior to using the image produced by another, or, failing that, to cite the source of the original.

        On the same token, the suggestion to Mr Wild is that he watermark all images that he places on the internet stating that each image individually carries a copyright rather than the general one that he placed at the bottom of his webpages. In this way, he is better protected from those who use search engines that allow for viewing of images without visiting the original webpage.

        For those with questions as to the limits of the Fair Use doctrine, visit the US Copyright Office webpage: http://www.copyright.gov/fls/fl102.html

        (I am not a lawyer, I just mold future lawyers. Do not take the above statements as legal advice — my students don’t really listen to me, why should you?)

        • Thanks for your insight, Kayle. That’s a big reason why I’d never take a case like this to court, nor even issue a takedown notice. The possibility that Dan’s version of my photo might cause me economic damages is both unlikely, and difficult to establish.

          • Speaking of which, Alex, I appreciate your attitude through all of this. You resisted any urge to be snippy, which so few people do on the Intertubes these days, and you’ve been utterly reasonable. You have my thanks and admiration.

  6. I am glad it is sorted out and you have taken time to plug the photographer. Many many in this world think it is cool to steal and not have consequences.

    You have admitted that you used him image as a reference and his friend recognized the work immediately. The copyright laws are pretty clear. Any work that is a based of another’s work is copyright infringement.

    As to Paulis comments: “The whole process of photography here is just making a copy of some actual object.”

    3/4’s of the work me and my fellow photog do is copy of something. For example if I create a image of a business person for a head shot, document a wedding or rock concert, take family photos, or a model, there is generally very little “art”. There is a ton of technical skill involved though. (And his skills are very good.) Copyright law protects us and lets us get paid, kinda like a union if you will. Just because you don’t value the style of work, doesn’t make it less legitimate.

    • “Any work that is a based of another’s work is copyright infringement.”

      No. Only (although it covers the majority of cases and is assumed by default) if the author of the original work wishes so.

  7. Thanks, Dan. The underlying legal issues obviously put this in a gray area, but I appreciate your openness. While I’m not going to sue you, is it ok if I sue your commenters for damages inflicted via unlicensed punning?

      • Love the puns. I also like that Dan provided the credit, though it is indeed a murky area. Just popped over to Alex’s site and HOLY GOD ARACHNIDS. I am both repulsed and fascinated. I also know someone who will love that jumping spider photo. Is it weird to gift a framed spider photo as a wedding present? ;)

      • Don’t apologize for the jazz pickles.I’m wondering where you found the fly pic if it wasn’t on Alex’s website,and if there was infringement there?I’m learning a bunch of stuff here today-as I assumed the internet is public domain.I know there are photo websites that block downloads ,so I’d assume Alex would use that protection unless he didn’t mind sharing.

  8. I understand where Alex is coming from. The original was his work. I might have had the same reaction when finding out someone used my work to make a derivative. That reaction would be emotional though. The original fly image was changed substantially: new details were added where none existed, a vast new interpretation was made, etc. I think I agree you had no obligation to reference your source in this case. Still, it’s a pretty nice idea to do so. Well, when Alex brought it up you did and that’s cool. And since you did, Alex probably saw visits to his site increase 30-fold :-) Awesome! If I found out, I might have contacted you and said, “Hey cool you used my photo to base your drawing on! If you don’t mind giving me a mention on your blog, I’d appreciate it.” Seems like all is well!

    • No amount of changes will keep it from being a derivative work. If someone steals your car, no amount of new paint, upholstery, or repairs will make it his car.

      • That makes no sense. The original photograph still exists. His tracing in no way damages his original nor deprives the photographer of possession or use. Pick another analogy.

  9. Interesting discussion. If I were to crop out the head of one of your cartoon flies and apply some filters to solarize and blur the image, then use that on a commercial site without asking you up front or listing you as the original source of the head, would that be infringment? It’s not the all of your original image, it’s been color shifted and blurred, it’s out of context, so how could that be a problem?

    When I use images or artwork or music or ‘free’ software for any commercial use, the first thing I check is the site or work copyright notice and, if I have any question, I’ll ask the owner before I use the work. This stuff isn’t easy, as much as we’d like it to be.

    Good job on the followup with Mr. Wild!

  10. A woman took a lot of my wildlife photos and just used a Photoshop oil painting filter on them. She loaded them up to her blog which has ads. I reported them to Google as copyright violations because my photos are copyrighted. You could only tell she added the oil painting filter if you really stared at it. I showed Google my originals and her photos which were 99.99999% identical. Normally I don’t care when people use my photos but this woman was using my photos to lie and state I hold animals by the neck which I have never done. Anyway Google legal said it’s not a copyright violation even though my photos are copyrighted. Google legal said she was using my copyrighted images for comment, added to another medium, for parody….which is covered by the fair use of copyright act. Dan, if you want to use some of my photos for your work, go right ahead. I give you permission.

  11. As the “official” Bizarro Museum Guard (see how using quotes protects my legal standing?) I have a lot of experience with art.

    My experience mostly involves standing by the wall and pointing out where the restrooms are,

    So I say this to Alex Wild: The next time you’re at the museum, there’s a bathroom on the right.

  12. Has everyone forgotten Shepard Fairey’s “Hope” poster of Obama? It, too, was an interpretation of a photograph and a copyright infringement. I’m glad the photographer and you were able to reach an agreement.

    • That case is a little different. Mr Fairey was punished for evidence tampering in that he deleted evidence from his computer that showed that he used a particular photo. As a result of this behavior, a settlement was had between him and the Associated Press in which he agreed not use another AP photo without permission and the AP would share in the profits of the poster. Obey Clothing, the company that made the T-shirt with the image created by Mr Fairey, also settled in a separate case to the same agreements as those in the primary case. All sides agreed that no one must admit fault or “surrender their view of the law” — which is a fancy way of saying everyone was right.

  13. Here’s a link to the fair use of copyright. It depends upon how much of the original you actually use. I’d say you are using 5% of the original. It looks like you used a photoshop filter on it just to get an outline. Then you added shadows, fur, extra bits here and there and turned it into something else. Still, wiser to get permission. I let anyone use my images for educational non-profit purposes. Of course my images are all over tshirts, cards…. Some jerks even use pics of my injured wildlife to raise money for fake vet care. Some total jerks are using pics of my baby skunks to scam people into buying baby skunks. Another jerk is using pics of my injured wolf puppy to try get deposit money to sell him. Here is the “fair use.” http://www.copyright.gov/fls/fl102.html

  14. It is clear that the photographer took pains to exclude the background from the image, thereby enabling it to be more easily traced, or used in other compositional works. I can completely understand his being miffed about this.

  15. I like how Alex had absolutely no problem using your drawing as an overlay on his image. Now he has no ‘gray area’ to stand on legally.

  16. P.S. To mr. Homo sapiens (A.K.A. Alex)… All I see listed in your model credits are genus and species with all personal information lacking. Don’t you appreciate your models?

  17. Wow! Doesn’t he realize you are drawing for a COMIC strip and not a biology book? Perhaps he is a little too focused on your fly…. ;)

  18. I loved your 3D image and loved his photo in a creepy kind of way. (Not a big fan of bugs and such. Bugs bug me.) Went to Alex Wild’s web site and now I feel bugs all over me! He has some amazing photos and is obviously very talented. Your talent is why I check out your blog every day (love, love, love your stuff).

    Does he know how much you love bugs yourself? Strange world we live in for sure.

    The combo image is close enough to look out of register. It’s a pet peeve of mine. With 23 plus years in the printing business, I always had to check on images that people wanted to print. It’s incredible what people try to get away with and what people think they have the right to use without permission.

  19. *sweats*

    If this is how they treated my idol, how will they treat me when they found out I was drawing Hiro Mashima’s Plue like its my own pet or the fact that I draw Nike’s The Gunner’s jersey too often. Yikes what if my “girlfriend” finds out I was drawing her 24/7 !!!

  20. There Was a Cartoonist Who Choked on a Fly

    There was a cartoonist who copied a pic.

    
Now was he a mimic to copy a pic – like some magic trick?

    He heard from the artist who captured the picture

    
Who spoke of the law and its copyright strictures

    And mentioned the trouble it took for the click


    And thought it an antic to copy a pic – though quite the trick.

    Now the sage cartoonist was quite surprised

    
But considered it wise to apologize

    
For he lacked intent to steal the pic;


    The focus he had was entirely comic,


    Though perhaps a gimmick to copy a pic – and quite the trick.

    Then the good cartoonist told the tale on his blog;

    And his fans were agog on perusing that log.

    They read how he came to apologize;

    They figured the angles, they measured the size;


    They read how the film guy had taken the photo;

    They considered the matter in parts and in toto;

    They read how the cartoon employed the pic,


    With some frolic in the topic – oh, the whole picnic.

    And the fans were like pickles, some sour, some sweet,

    Though all agreed the drawing was neat.

    
Some claimed “fair use”; others, nearly abuse;

    Some wondered why bother with any excuse!


    They plastered the blog with argument;


    They argued about what copyright meant;


    They disagreed on the need for apology;


    They nearly invaded arcane theology.

    
Some were stoic, some nearly sick – in this scene of slapstick.

    Everyone keyboarded, for that’s how they jawed;


    Some pointed to law, some said it was flawed.


    Some described intricate technique


    Of oeuvres artistic and photographic,


    Conveying a sense of the mystic


    While acquiring repetitive motion injury “wristic” -


    All from their traffic in nitpicks of one grand trick –

    
Till at last some fool became quite spastic

    And muttered a limerick, as phony as plastic:

    There once was a shutterbug named Wild

    Who loved every shot like his very own child

    He chanced to espy

    A sketch of his “fly”

    And found himself flattered, but riled.

    Foye Lowe, July 22, 2013

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