Tracing for Money

AttorneyScott Commentary:

Los Angeles, CA – Recently, with the rise of Shepard Fairey and Thierry “Mr. Brainwash” Guetta, appropriation art has become a major “thing.” Not since the days of Warhol has it been so hip to take works from other artists and add your own vision, spin, or angle to create a “new” piece of art.

In legal jargon, we call such pieces “derivative works.” A derivative work is a work that builds upon an underlying work that someone else earlier created.

Legally speaking, most appropriation art pieces are infringing unless: (a) the artist for the derivative work owns the underlying work and the derivative, (b) the artist for the derivative work gains the permission of the owner of the underlying work to use the work, or (c) the use of the underlying work is so minor, or the derivative work so greatly transforms the underlying work, that the use qualifies as a fair use*.

Below are a few examples of appropriation art. The artist attempts to “transform” the underlying work by adding her own expression. Do you think it qualifies as a “fair use” under prong (c) above?

As a hint, perhaps you can recall (or Google) the lawsuit filed by the AP photographer against Shepard Fairey for his Obama “Hope” piece. How did that one go?

*fair use is a whole ‘nother ball of wax, which we will cover in a future post.

***

Dear YTWWN:

Hi.

I’m all for creative people honing their skills by using various mediums, photography, tutorials, brushes, etc so long as it helps them to finally produce a piece of work that is original, unique and entirely theirs.
However, for a while I’ve been annoyed with the works of UK ‘artist’ Peatree Bojangles. (http://www.peatreebojangles.co.uk) She seems solely interested in taking existing photographs,often by well established photographers, adjusting the levels a bit and drawing over them slightly and then passing them off as her own and selling them on her site – every single one has no mention of the original photographer of the works or any mention of copyright.
Personally, I don’t think this is on. Here’s just a few examples:

I’m tired of seeing stuff like this with no information of the original photographer, and when you see that money is being made off the back of this, it gets my back up. What do you say YTWWN?

Posted by Crawlpappy  |  35 Comments  |  in Uncategorized

35 Comments

  1. johnny 04/09/2013 6:15 pm

    I know I’m in on this pretty late, but holy shit this chick can’t draw! Who cares if a 12 year old with access to drawing materials is making awful copies of photos, it’s what they do.

  2. Mike Dimmick 12/31/2012 3:33 pm

    I am no lawyer, but surely image rights also come into this? Those celebrities knew they were posing for the original photographs, but have surely not given permission for the artworks – whether traced or not.

  3. Hannah 09/20/2012 9:05 am

    I don’t understand the discussion of whether it is traced or not. If you are copying something free-hand, you are still infringing on the photographers copyright.

    Stop attacking the artist, she has apologised. But she does need to learn about copyright, if she wants to do illustration as a career. If the photographers sue her, it will be much bigger problem than being posted on this blog.

  4. Ann Nonymous 08/14/2012 9:22 pm

    Copies are copies whether they are traced or freehand. IMHO

  5. Anonymous 08/13/2012 4:24 am

    You People are stupid C!@#s and quite possibly do not understand what art is, because you are not very artistic.

    Art does not follow statutes, art has now boundaries. Everything in art is an expression of the artists perception of the world and everything in it. Including “copyrighted ” art. Does mothernature get to copyright Vincent Prices face? See we can write laws, but at the end of the day, no one can put boundaries on how one percives their world. If art followed rules, it would be as boring as an office spreadsheet. (in my opinion office spreadsheets are boring)

    If the original artist has a problem with what you are doing, they will contact you and let you know. I’m sure in that case Peatree Bojangles would happily take it down, and worse case pay a fee and or taken to court if no agreement was made. (that is the price of expression in this world, its all about the dollars to some people… maybe even most of you naysayers)

    What gives any of you the right to define what is expressionism and what is not. What is original, unique and entirely theirs. How much of Meagan Fox’s body is entirely the photographers. This article is very narrow-minded. Visual art is easier for narrow minded people to pick on and find similarities. How about music though. I garuntee you many songs are “traces” from other songs, but often goes unnoticed. And who cares, it is what it is.

    To Peatree Bojangles, keep doing what you are doing. I think they are awesome and clearly is an artistic expression of how you veiw your world.

  6. Busy Bee 08/09/2012 5:34 pm

    What a pathetic little girl. All her “illustrations” and “Design” look like beginners photoshop experiments. If you are going to do that dont plaster your own face on your homepage, one day you will learn how to illustrate properly and be so embarassed, especially by the silly youtube video.

  7. Louie 06/21/2012 9:05 pm

    You people are ridiculous. I hadn’t checked this site in a few months and now that I see it is populated with ignorant blowhards, I won’t bother coming back.

  8. Samster 06/01/2012 8:43 am

    “I am an illustrator, not an avid reader of copyright legislation so was obviously unaware of all this.”

    How can you claim to be any kind of artist and not even be aware of rights designed to protect YOUR work? Do yourself a favour and do some research, but in simple terms:

    1) Photographs are art

    2) Photographs are therefore covered by copyright, which means any derivative works are infringing

    3) The model in a photograph may also have a particular agreement with the photographer which restricts the way in which the photograph can be used

    4) In order for a third party to use said photographs, they must either be openly declared free stock, or stock with rules which you must follow (in which case credit is usually demanded), and if the photograph is NOT openly-declared stock, you MUST get permission from the photographer BEFORE you use it. After is not good enough in this case. Credit is not good enough in this case. A court WILL rule against you.

    5) If you can’t find or contact the photographer, you don’t use the photograph. Simples!

  9. humunkulus 05/21/2012 9:05 am

    “1. It doesn’t matter if it’s traced or not. It’s still a copy of a photo, protected by copyright.”
    basically what I said a few days ago

    there’s no “appropriation” here. it’s a copy.
    usually giving credit isn’t even enough – you have to ask for permission to use *before* doing anything.

  10. Maaike 05/20/2012 6:08 pm

    I can’t believe how little people know of copyrights.

    1. It doesn’t matter if it’s traced or not. It’s still a copy of a photo, protected by copyright.
    2. Apologizing doesn’t make anything illegal legal.
    3. Giving credit to the photographer doesn’t make this legal either.

    To sum it up:
    If any of the photographers ever decides to sue you for copyright infringement, THEY WILL WIN and you need to pay up.
    You can feel like you’re not doing anything wrong but law will disagree with you.

  11. the second and therefore inferior(?) Y 05/18/2012 10:38 am

    Sorry I hadn’t read all the comments her before posting. My name is Yovan hence the Y.

  12. Y (the first Y) 05/17/2012 6:51 pm

    Errr… Last “Y”
    Please don’t use the same nickname as someone did earlier!
    ‘Cause right now it looks as if you and I are the same person…
    I just wanted to clarify that!

  13. Y 05/17/2012 6:23 pm

    Unfortunately, once a bit of time has passed and the hits to this page are recognised by Google, when someone types ‘Peatree Bojangles’ into the search box, this site will come up on the first page.

    I hope that makes everyone happy.

  14. A REAL ARTIST 05/17/2012 6:03 pm

    After reading and re-reading Peatree’s first comment, I believe that she is arguing that she has not traced the image. She creates a freehand sketch of the subject. She then uploads both the original photo and her freehand sketch into photoshop.

    She then ‘copies’ parts of the original photo and ‘pastes’ them straight into her sketch. In my opinion that is far worse than tracing.

    Why on earth did she ever think that was OK?

  15. mel 05/17/2012 1:24 pm

    I can see why you don’t want anyone overlaying your ‘art’ with the original photos. That’s some pretty damning evidence against you right there!

  16. Bobby 05/17/2012 12:52 pm

    Just looked at the overlay. I don’t know how you can come back and still maintain that you didn’t trace the image. They do match up. Even the best artist IN THE WORLD would have trouble replicating an image without even a millimetre of difference just by drawing from eye.

    Your constant justification is ridiculous.

  17. Peatree Bojangles 05/16/2012 9:32 pm

    What exactly have I changed my mind about? I apologised and apologised and removed images and felt awful and am now being accused of tracing and all I did was create artwork I, and many other, enjoyed. The only thing that has changed is my temper. I’m a young girl who illustrates; I take things to heart. Please don’t patronise me by claiming I could have acted ‘the bigger person’ but if I wasn’t allowed the freedom to share my side of the story, everyone who enjoys jumping to conclusions and posting articles would have a field day on here.

    And Sarah, stop overlaying the image for Christ’s sake. I spend a life time trying to be a perfectionist in creating the perfect illustrations and to be criticised for it? Next time I’ll make sure an eye is misplaced for your benefit.

    Btw I complained to nobody about any image. If your image was taken down it’s because it’s ridiculous.

  18. Sarah 05/16/2012 5:05 pm

    If they didn’t match perfectly, why did you complain to imageshack and get the image removed? I don’t have the time nor the inclination to overlay all the images again…but here are the brad pitt and rhianna overlays. they match PERFECTLY!

    http://dl.dropbox.com/u/2640434/brad%20overlay.jpg

    http://dl.dropbox.com/u/2640434/rhianna%20overlay.jpg

    Unfortunately, she was making money from the images. She has since removed those images from her online shop.

  19. Brog 05/16/2012 3:59 pm

    You said this would be completely wrong if she was making money with these images. She has a webshop linked from her site, and looking at Google’s cache of that shop there are plenty of images that have celebrity names (such as Bill Murray and Rhianna to name a couple). Since, however, google doesn’t cache the images I cannot say for sure that these images fall into the same category as the one in this post, but it is not far fetched to assume so. If they do it would appear that your argument falls flat.

    I do agree that hounding her is pointless. She realized her mistake (well, at first, then changed her mind) and that should’ve been the end of it, no point in carrying on like this. However, Miss Peatree also had the opportunity to act like the bigger person her, realized her mistake, removed the infringing stuff and thank whatever gods she may pray to that no original copyright holder found and pressed charges because of what she did. She had that opportunity, instead she chose to act out here and acted defiant and like she hasn’t learned anything from it.

  20. Y 05/15/2012 2:32 pm

    Honestly I think this got out of hand.

    First of all, I believe the artist when claiming she did not trace the images or at least I give her the benefit of the doubt.

    Second, let me explain myself when I say this got out of hand. Everyone, has at one time or another of heir life, copied or got inspired by an image. We have all done fanart at some point. This is basically what she did here! She loved an image and she decided to give it her own interpretation. That is all!

    BUT! The only mistake she made is she didn’t give credit to the person who first took the picture or at least give a link to the original picture. Should she have done that? YES! But on the other hand, those images were made from famous people so we have all probably seen the real images! Still linking the original images would have been nice and might have avoided the whole thing.

    If she was making money with these images this would be completely WRONG! But after going through her shop she doesn’t seem to be making money out of it. So there’s no need for all the hate here! Those drawings are simply an homage as she puts it to an image she loves, or they could even be consider as practice.

    And last but not least, give her a break, she’s trying to apologize! She made a mistake but she can easily fix it by simply adding the links of the original under the images she did, and I’m sure she’ll always do that from now on to avoid this sort of thing again. I think she learned her lesson! ^_^

  21. Peatree Bojangles 05/15/2012 11:44 am

    All matched perfectly…?! Are you all just seeing what you want to? Did you even look at that image you created??

    It seems like I’m being torn apart for being talented. Which is great actually. Thanks for saying my images are so close to actual photographs! If anything, this article is a compliment.

    Stupid, but a compliment.

    BRB gonna go layer a photograph on any homage illustration of a celebrity and create an article about it. I do have a lot of spare time after all.

  22. humunkulus 05/15/2012 8:25 am

    traced “by hand” with sheet of paper on top or “by eye” is totally irrelevant.
    if it’s copied like that, it doesn’t matter if you apply the colours with a shoe.

  23. sarah 05/14/2012 11:05 pm

    oops here is the link: http://img16.imageshack.us/img16/9433/layovers.jpg

    click to enlarge.

  24. sarah 05/14/2012 11:04 pm

    I really wanted to believe the artist as she spoke very passionately and seemed, if anything, just a bit ignorant regarding the law.

    However, after laying her ‘art’ over the original picture, all match perfectly. This would not happen had she drawn them freehand. Poor show Peatree. Poor show.

    [IMG]http://img16.imageshack.us/img16/9433/layovers.jpg[/IMG]

  25. Poor Taste 05/13/2012 6:40 pm

    These are obviously not traced. You can look at the images and see that the dimensions are off. This place has seriously gone to crap. Do online artists now have to worry about every single asshole they met in school being able to write slanderous emails on a whim and then getting them posted here like it’s factual? I guess the person who now runs this blog is so desperate for material they’ve resorted to posting these embarrassing personal attacks. This is no longer about protecting the artist, it is a device used to bring them down.

    It would be interesting to see how things would work if instead of just the artist’s name being dragged through the mud the people writing these emails had to put their name on it and stand by their words. Ms. Bojangles has gone through the trouble and removed all of the related artwork from her website. It might be in good form to either add a follow up to this post better explaining the situation or remove the whole thing completely.

  26. Peatree Bojangles 05/13/2012 5:42 pm

    I’d like to re-iterate, this article is false. I do not trace for money. This claim has angered me no end.

    I admit I wasn’t aware that drawing an illustrative homage to a photograph was such a terrible thing that I should obviously be locked up for.

    I wonder if the person who wrote this wished he had the initiative to ask me how I create my illustrations and realise I don’t trace, but then privately make me aware of the legislation.

    Unless of course this is a personal attack.

  27. Peatree Bojangles 05/13/2012 5:31 pm

    This whole article and these comments seem to be a place for people who enjoying punching people while they are down. It’s a very sad state of affairs. Please, continue to dissect what I have said. I hope it all makes you very happy to know that a girl is genuinely apologetic for something she has done and you’re doing nothing but upsetting her.

    Sensitivity in the human race is what boggles my mind. As does the ability for people to knock me down in a public forum instead of contacting me asking me about my work privately and making me aware my work could be derivative.

    Well done for being cruel.

  28. David 05/13/2012 3:31 pm

    “I’m a serious illustrator who was UNAWARE of this legislation ”

    What? How can you be a ‘serious’ illustrator and not know about copyright??!? The mind boggles.FFS!!

  29. Peatree Bojangles 05/11/2012 11:10 pm

    Yes I’m claiming I sketch the images freehand. I have no reason to justify myself, but as you’ve questioned my artistic ability, I’ve uploaded the original Vincent Price sketch before I added tone and shadow/colour to it on Photoshop: https://fbcdn-sphotos-a.akamaihd.net/hphotos-ak-ash3/p480x480/546019_459049584111506_261440720539061_88908741_931661367_n.jpg

    I have ALREADY APOLOGISED in my previous comment about offended anyone with my illustrations, I’m not sure what else you want from me?

    I am an illustrator, not an avid reader of copyright legislation so was obviously unaware of all this. I’m not an idiot that ‘steals’ or ‘traces’ and then rants about it all over the internet as if it’s my own. I’m a serious illustrator who was UNAWARE of this legislation and that I was unable to create an illustrative homage to an image I enjoy. If this is the case then as I’ve said in MY PREVIOUS COMMENT I will take down any offending images.

    I’m not sure what else to do as it seems you won’t be happy until you have my head on a spike.

  30. Brog 05/11/2012 9:45 pm

    Not to mention that the difference between tracing and just drawing a copy of a picture from sheer reference is minor in the eyes of copyright legislation. You’re still creating a derivative work, tracing or not. If we’re going to be crude the copyright of the material you have created is actually being held by the photographer of the original picture, in the same way as an image you draw of Mickey Mouse would still be copyrighted to Disney.

  31. George P 05/11/2012 9:11 pm

    Are you claiming that you sketch the images freehand while looking at the originals? Seriously?

    It does not appear that you have taken “small elements”. Tineye agrees, finding the original Vincent Price image when asked to find yours.

  32. Peatree Bojangles 05/11/2012 8:39 pm

    Sorry about spelling mistakes in that comment. Autocorrect hates me.

  33. Peatree Bojangles 05/11/2012 8:38 pm

    Hello, I’m artist Peatree Bojangles and this article was made aware to me by someone on my Facebook page. I’d just like to justify my work by saying that none of the images are traced. I can understand why someone would imagine that, but my working process is done in this way:

    I find or create and image and then sketch it onto my sketched. I add shadow and tone depending on where I’m going to add detail and make the rest a shadow. I them take a photo of the image to help with adding more depth. When the image is created I open it in Photoshop and add colour and more tone. I then take elements of the original photograph, almost always eyes and hands, and usually another elements (maybe a background) to assist my original sketch.

    I would like to apologise to anyone the illustrations have offended and am unaware if taking only small elements is allowed or not. If need be, I’ll take down any illustrations that are of celebrities. if it also helps, I’ll put up my original sketches on my website.

    Thanks.

  34. George P 05/11/2012 12:58 am

    It is conceivable that she has licensed the photographs and is not required to credit them, but I think that’s unlikely.

    If not, then, yes, these are clearly not derivative enough.

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