newbie help required - using images to make wood engr

'Is it legal', 'can I do this' type questions and discussions.
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newbie help required - using images to make wood engr

Post by Ryangsoton »

Hi, hoping I can find an answer to my question(s) here, any help greatly appreciated.

I wish to sell laser engraved pieces of wood which depict famous sporting moments. For example: a picture of a boxer standing over an opponent he has just beat, or a baseball player having just hit a home run etc.

From my (very limited!) understanding of copyright I believe that whomever takes the photo has the copyright. I happen to know who that is as they are a well known photographer In sporting circles and I could reach out to them easily.

My intention is to approach this photographer and request that I use part of their image for my engraving. I say 'part of image', because I will have to remove all background from the image, convert the image to black and white and a suitable resolution for my engraver, brighten some parts of the image and darken others, remove certain irrelevant detail etc etc. The end result is then of course a piece of engraved wood rather than a 'photo'.

My hope is that the photographer would like to see his image used in this way and we can reach an agreement, however if this is not the case, given that I am depicting a well known sport 'moment in time', and my engraving would be far removed from the original image, am I even legally obliged to do this?

Also, could the fighter/baseball player be disgruntled, or even the promoter/league who ran the event itself??

If somebody could let me know where I stand regarding this I would be most grateful.

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Post by AndyJ »

Hi Ryangsoton,

This sounds like an interesting venture, and thanks for the explanation. The critical thing is to know where you live! The answers to your questions are markedly different based on if you are in the UK or the USA, or indeed somewhere else. I'll try and cover the two main countries.

UK. Here you would almost certainly need to get permission from the photographer, as copying a substantial part (ie the important parts) of a copyright work even if this is done in a different medium, and in 3D rather than 2D, would infringe the copyright in the photograph. On the plus side there would be no difficulty about using the likeness of the sports personality who was depicted in your engraving.

USA. It would still be best to get permission, but because of a doctrine known as fair use, you may not need to get permission if your depiction is sufficiently transformative. There are four factors which are considered when judging if something falls within the fair use definition. You can read them here. Some US courts have placed great emphasis on the extent to which the new use 'transforms' the first work into the second one, so I think in your case this would be significant. A couple of examples of this in practice from the world of photography and art, are the cases of Cariou v Prince where a fair use defence was successful, and Fairey v AP where it was not. These cases illustrate the problem that each case is judged on its own merits, so it is not at all certain in advance whether fair use would apply to your engravings. The other thing which is different in the USA is that there is widespread protection of an individual's personality rights including their likeness. The laws vary from state to state, and not all states have such laws, but since your work would likely be available in all states via the internet, a sports personality could choose a particular jurisdiction to sue you if they wished. In this area the key thing would be whether your use of the person's likeness was 'editorial' or not, as clearly the other factors such as an expectation of privacy would not apply to sporting events. Editorial use (ie commentary or documentary use) is permitted under the personality rights laws which are primarily intended to prevent the use of a person's image in advertising, where it might be thought the person was endorsing the product. Given that in some cases, a potential buyer might want one of your engravings because of the person depicted, I suspect that the editorial definition might fail. It is ironic that while the different (transformative) purpose of your engraving might assist in the case of copyright, the same difference might, in the matter of personality rights, make your engraving vulnerable to litigation while the photograph of the event would be exempt because it was more clearly editorial use.

You need not worry about the promoters of any events. You should however avoid including any logos, such as the NFL shield or the Olympic rings, as this could introduce trade mark issues.

In other jurisdictions, a mixture of both factors may well need to be considered. For instance in the rest of Europe, a situation similar to the UK is likely to apply over copyright, while some countries such as Germany and France have a form of personality rights law. Further afield some other countries tend to follow the US fair use model of copyright exception.

So generally I would advise you to try and get permission, wherever you live. This may not be as straightforward as it first appears. The photographer may have sold his/her rights exclusively to particular publisher, meaning that he/she would then be prevented from giving you permission. Also if the photographer was fully employed by a company (say like a newspaper or AP), the employer would own the rights, and therefore you might well have to pay a hefty fee for the permission you are seeking. In the USA, if the sports personality is known for endorsing products (as most do at some level or other), then you will need to consider if you need their permission also.

I hope this helps. If you are based outside the UK I would advise you to seek some more specific professional legal advice on the law as it applies in your area, as it could save you some costly legal problems.
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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