Parody Photo Composites?

'Is it legal', 'can I do this' type questions and discussions.
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sworrubs
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Parody Photo Composites?

Post by sworrubs » Fri Nov 09, 2012 10:54 am

Hi there,

First off as this is my first post: 'Hi, I'm Scott!'. This looks to be a fantastically useful resource and I'm hopeful you can help me with my current conundrum!

For birthdays etc. I will often design my own parody cards for friends/family based around their interest. For example compositing the face of someone who is into rugby on to a member of the Welsh rugby team. This is all done privately and only for personal use etc. etc. however I have had several people approach me asking if this was a service I could provide for them to have cards made for their friends from photos/images that they would supply.

My reaction was no, this wasn't something I could offer in any kind of commercial context as chances are, the majority of images they would want me to use I would not have the rights for.
There is, however, a grey area in my head that I'm hoping I could get some clarity on: As they are bringing the images to me and I am not choosing them, can I simply charge them for the time spent on creating the parody image or am I responsible for saying 'I can't have anything to do with this, you don't have the rights to it'?

Any help would be greatly appreciated and thanks for your time!

-Scott

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AndyJ
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Post by AndyJ » Fri Nov 09, 2012 1:41 pm

Hi Scott,
Welcome to the forum. And thanks for the interesting question.
You are producing artist works, which although you call them parodies, might in legal terms be seen as composites or adaptations. I assume from what you have said that your source material is photographic, although in fact that is not strictly relevant. At present there is no fair use category for parody or pastiche in UK law, although it is something that has been recommended and which the government is considering. But even so, I doubt if your works would qualify because you are not parodying the underlying work or the idea it represents (the Welsh rugby player in your example, for instance) so much as the person for whom the card is intended, where of course there is no problem with infringement by using their image.
What we need to look at is the amount to which you use the underlying image - in the words of the law, whether you are using the whole or a substantial part of the other person's work. This is measured in qualitative terms rather than quantitatively. And I suspect the answer with your cards will be different in every case. For example, where the Welsh rugby player is concerned, his face will no doubt be the key to the photograph for most people and because you are replacing that, it could be argued that you are using an insubstantial part of the image (only his body and the background). Whereas if you took a generic image of, say, a postman to use for a friend's card, it may well be that the 'substance' of the source image is that it was of a postman and so your use of it would be substantial. Perhaps not the best examples, but I just wanted to illustrate the pitfalls. Another example of this can be found in the case of the artist Shepard Fairey and the Obama 'Hope' image he created. It is worth noting that that case was handled under US law and not all the lessons directly apply in the UK, but it does highlight the problem facing artists who assemble their work from pre-existing images or objects, what is normally referred to as collage or appropriation art.
And unfortuntely it doesn't make any difference that someone else provides the source image if it is you who actually merges the two together. I assume you do this using a photo editing program such as Photoshop.
For these reasons, I suggest you need to take great care over the selection of source images. Where possible try to use public domain images such as free clip art or consider drawing your own figures using other works as inspiration and not slavishly copying them as in the Shepard Fairey case. I hope this helps.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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