ESPN using some of our members work

[BBTV]

ESPN, however, simply took the photo and exploited it on their Facebook page. Unless they got permission from gladsadmad, that's probably infringement.

Like I said, it's a post on a Facebook wall. It's not like they used it on air. If they used it on air, then I'd understand the problem with this but they just posted it on Facebook.

There's no difference. Like any company, ESPN uses their Facebook to promote their products, which in this case are their TV shows and website. Someone sees that on Facebook, gets intrigued by the discussion, then turns on ESPN to see if there is any discussion about it. Everything a commercial entity does has to be considered "for profit" and regardless of where they put it, all licenses and rights should be secured prior to them using anything. Not saying that our own member would have any rights to the image or anything, just that in general, the fact that it's "just a FB page" doesn't really matter.

/not a lawyer, just my opinion.

[dissident93]

yes thats Gladsadmads work. i can easily tell because he messed up the left shoulder stripes. lol.

furthermore, they should not be using his work. the reason why its unacceptable, Dissident93, is because its stolen. that wasnt done for ESPN. they are using someone elses work to promote their own network. they may even have some issues with Getty, or wherever the original photo came from

yea I know. that's why I said some people would not allow even it, but if this was MY work, and they credited me at least, it would be fine. (my personal view)

[CrookedThumb]

The problem is that I don't suppose gladsadmad asked the NFL or the Indianapolis Colts for permission to use the Colts logos and uniform. So it's not like he can do anything about it. But it also shows some members double standards on intellectual property rights. Happy to borrow, uncredited on one hand, unhappy to be borrowed from on the other.

(Just to be clear, some intellectual property right thieving is very bad. I don't think purloining a Photoshop effort to illustrate a poll on facebook falls into that category.)

Unless he took the photo himself, or got permission to use it, he's tecnically stealing as well.

The thing about gladsadmad's work (and most of the concepts posted on this board) is that even though it uses logos and images that belong to other people (Colts, NFL, Nike, the person who took the original Andrew Luck photo), it would most likely be considered a "Fair Use" of those images. The US Supreme Court brought forth a 4-factor Fair Use test, and it seems like gladsadmad's work passes the test and is ok. Especially since his work passes the two most important factors, nature of the work and market effect on the original works, I can't see how his image isn't fair use.

ESPN, however, simply took the photo and exploited it on their Facebook page. Unless they got permission from gladsadmad, that's probably infringement.

Sorry...I'm a law student, specializing in Intellectual Property, and I'm about to take a Copyright Law final in three days.

Not to get into a legal minefield here, but what 'market effect' is using someone elses Photoshop going to have? What market value would the original have? and given that gladsadmad didn't do the original to profit, I don't see how he coulduse 'nature of work' as a defense either?

Nature of the work (the first factor) looks at why the work was made and what that author/artist did to the original works. If the author just ripped off the originals for his own commercial gain, that would fail the first factor of the fair use. What gladsadmad did was take a photo of Luck playing at Stanford and TRANSFORMED* it into something else, for the purpose of sports commentary (Hey guys, do you all want to see what Andrew Luck would look like if he played for the Colts?). To me that's fair use.

And again, ESPN didn't transform gladsadmad's work, they just took the image and used it to promote their Facebook page. We need gladsadmad to chime in on this. I have a hard time believing that ESPN is dumb enough to not ask for permission.

*"transforms" doesn't have to be changes to the original work, but also changes in the purpose of the original work.

[pcgd]

ESPN made money by either not paying a freelancer to do the design or not paying their designers for their time on this and have them work on something else.

If true, and sounds like it is, then you have a issue. But in reality, there won't be damages paid or anything like that. Kinda scummy on ESPN's part but even if it was pursued there would be a C&D letter, they'd replace it with another image and that'd be that.

As far as him using images from getty or the internet and the Colts logos...its Fair Use all the way.

[CrookedThumb]

For damages, a plaintiff in a copyright infringement suit is also entitled to profits that the defendant made as a result of the infringement. But the hard part is proving how much profit is made BECAUSE OF THE INFRINGEMENT.

[Saintsfan]

The problem is that I don't suppose gladsadmad asked the NFL or the Indianapolis Colts for permission to use the Colts logos and uniform. So it's not like he can do anything about it. But it also shows some members double standards on intellectual property rights. Happy to borrow, uncredited on one hand, unhappy to be borrowed from on the other.

(Just to be clear, some intellectual property right thieving is very bad. I don't think purloining a Photoshop effort to illustrate a poll on facebook falls into that category.)

Unless he took the photo himself, or got permission to use it, he's tecnically stealing as well.

The thing about gladsadmad's work (and most of the concepts posted on this board) is that even though it uses logos and images that belong to other people (Colts, NFL, Nike, the person who took the original Andrew Luck photo), it would most likely be considered a "Fair Use" of those images. The US Supreme Court brought forth a 4-factor Fair Use test, and it seems like gladsadmad's work passes the test and is ok. Especially since his work passes the two most important factors, nature of the work and market effect on the original works, I can't see how his image isn't fair use.

ESPN, however, simply took the photo and exploited it on their Facebook page. Unless they got permission from gladsadmad, that's probably infringement.

Sorry...I'm a law student, specializing in Intellectual Property, and I'm about to take a Copyright Law final in three days.

Not to get into a legal minefield here, but what 'market effect' is using someone elses Photoshop going to have? What market value would the original have? and given that gladsadmad didn't do the original to profit, I don't see how he coulduse 'nature of work' as a defense either?

Nature of the work (the first factor) looks at why the work was made and what that author/artist did to the original works. If the author just ripped off the originals for his own commercial gain, that would fail the first factor of the fair use. What gladsadmad did was take a photo of Luck playing at Stanford and TRANSFORMED* it into something else, for the purpose of sports commentary (Hey guys, do you all want to see what Andrew Luck would look like if he played for the Colts?). To me that's fair use.

And again, ESPN didn't transform gladsadmad's work, they just took the image and used it to promote their Facebook page. We need gladsadmad to chime in on this. I have a hard time believing that ESPN is dumb enough to not ask for permission.

*"transforms" doesn't have to be changes to the original work, but also changes in the purpose of the original work.

Well I tend to agree that ESPN may well have asked for permission, (its hard to imagine ESPN just employing some copy boy to browse the internet looking for images.) I find it difficult to suggest that using an image on facebook is likely to have many commercial applications. I wouldn't even go as far as saying that ESPN would use an outside agency for something like this, I'd imagine they have a team looking after their facebook page, who would have the skills to photoshop an image. So I think putting a number on how much ESPN saved or would make from this image is impossible. Whether or not they asked for any permission, I can't believe any settlement they might make would be worth much. They'd take their chances in court, and I would imagine they, with a team of highly paid lawyers, would do pretty well protecting their name in court, if it came to it.

[BrandMooreArt]

The problem is that I don't suppose gladsadmad asked the NFL or the Indianapolis Colts for permission to use the Colts logos and uniform. So it's not like he can do anything about it. But it also shows some members double standards on intellectual property rights. Happy to borrow, uncredited on one hand, unhappy to be borrowed from on the other.

(Just to be clear, some intellectual property right thieving is very bad. I don't think purloining a Photoshop effort to illustrate a poll on facebook falls into that category.)

Unless he took the photo himself, or got permission to use it, he's tecnically stealing as well.

The thing about gladsadmad's work (and most of the concepts posted on this board) is that even though it uses logos and images that belong to other people (Colts, NFL, Nike, the person who took the original Andrew Luck photo), it would most likely be considered a "Fair Use" of those images. The US Supreme Court brought forth a 4-factor Fair Use test, and it seems like gladsadmad's work passes the test and is ok. Especially since his work passes the two most important factors, nature of the work and market effect on the original works, I can't see how his image isn't fair use.

ESPN, however, simply took the photo and exploited it on their Facebook page. Unless they got permission from gladsadmad, that's probably infringement.

Sorry...I'm a law student, specializing in Intellectual Property, and I'm about to take a Copyright Law final in three days.

thanks for that post. good to hear from someone with the right knowledge on the subject. i would like to hear from GSM too

yes thats Gladsadmads work. i can easily tell because he messed up the left shoulder stripes. lol.

furthermore, they should not be using his work. the reason why its unacceptable, Dissident93, is because its stolen. that wasnt done for ESPN. they are using someone elses work to promote their own network. they may even have some issues with Getty, or wherever the original photo came from

yea I know. that's why I said some people would not allow even it, but if this was MY work, and they credited me at least, it would be fine. (my personal view)

thats fine if you like getting paid with a "thanks"

[meetthemets]

For damages, a plaintiff in a copyright infringement suit is also entitled to profits that the defendant made as a result of the infringement. But the hard part is proving how much profit is made BECAUSE OF THE INFRINGEMENT.

And nobody in their right mind is going to waste time or money on lawyers in a case like this. Not justifying what ESPN did here, but the chance of them getting sued over something like this is 0.0%. So why not just do it and take your chances? Again, just playing devil's advocate here.

[Chawls]

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

[Island_Style]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

[CrookedThumb]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

I'll talk to my copyright professor about this issue sometime within the next few days to get his opinion. I'm interested in getting his opinion. And just covering my butt by saying this, but nothing I post here should be taken, by gladsadmad or anyone else who reads this, as any type of legal advice (Sorry, I have to say it).

[Island_Style]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

Good, you seem to somewhat know your stuff. This could be a fun discussion on learning copyright laws.

Can I take Mickey Mouse (non original) and add devil horns to him and call it my original expression?

[CrookedThumb]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

Good, you seem to somewhat know your stuff. This could be a fun discussion on learning copyright laws.

Can I take Mickey Mouse (non original) and add devil horns to him and call it my original expression?

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

[Island_Style]

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

So I can own it and not get sued but I can't make money off of it?

What if I merged Mickey and Ronald McDonald? Like the Broncogator guy. Did he get off without courtroom scorn?

[CrookedThumb]

So I can own it and not get sued but I can't make money off of it?

What if I merged Mickey and Ronald McDonald? Like the Broncogator guy. Did he get off without courtroom scorn?

I mean, it all depends (the answer to EVERY legal question is existence). The first Fair Use factor is purpose of the defendant's (accused infringer's) work. Was it used to make money, or as a parody/criticism/commentary? The latter is far more likely to be ok than the former. The fourth factor is the market effect on the original. Will people consider the defendant's work as a possible substitute for the original? If Disney was to prove that they were planning on marketing Satanic Mickey, you might run into some trouble.

I don't know what happened to the Broncogator guy. Since it was sold on a whole bunch of shirts here in Gainesville, and I've heard no news story about it, I assume that he got licenses from either or both of the teams. Though I think he would only be at odds with the Broncos, because I don't remember there being any elements belonging to the actual UF Gator logo.

Also keep in mind, we're only talking copyright. Trademark Law is a whole different ballgame.

[Saintsfan]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

Good, you seem to somewhat know your stuff. This could be a fun discussion on learning copyright laws.

Can I take Mickey Mouse (non original) and add devil horns to him and call it my original expression?

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

That seems crazy to me. I don't think changing an original gets rid of the original copywrite. If it's clearly supposed to be Mickey Mouse, or to resemble Mickey Mouse, you'd get your backside sued off. Although that doesn't seems totally similar analogy (Luck's image wouldn't be protected in the same way as a cartoon character's).

[CrookedThumb]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

Good, you seem to somewhat know your stuff. This could be a fun discussion on learning copyright laws.

Can I take Mickey Mouse (non original) and add devil horns to him and call it my original expression?

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

That seems crazy to me. I don't think changing an original gets rid of the original copywrite. If it's clearly supposed to be Mickey Mouse, or to resemble Mickey Mouse, you'd get your backside sued off. Although that doesn't seems totally similar analogy (Luck's image wouldn't be protected in the same way as a cartoon character's).

This does a good job of explaining what fair use is and how it's determined. Remember, all accused infringers, who claim fair use as a defense, have to pass a 4-factor balancing test. So Devil Mickey will have to be examined under it.

Examples of things that have been ruled to be fair use:

-2 Live Crew's parody of Roy Orbison's "Pretty Woman", recorded and released without the record company's permission

-A Beanie Baby Collector's guide, containing photos of all the Beanie Babies

-A coffee table book about the Grateful Dead featuring photos of some of their tour posters

-A picture of a Barbie doll inside of an enchilada

-The book, "The Wind Done Gone", which was "Gone With the Wind" as told from the perspectives of the slaves.

What's NOT Fair use:

-A book of Seinfeld trivia questions, not licensed by the people who hold the rights to the show

[BrandMooreArt]

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

So I can own it and not get sued but I can't make money off of it?

What if I merged Mickey and Ronald McDonald? Like the Broncogator guy. Did he get off without courtroom scorn?

this case might interest you. from wikipedia . . .

Walt Disney Productions v. Air Pirates

In 1971, a group of underground cartoonists calling themselves the Air Pirates, after a group of villains from early Mickey Mouse films, produced a comic called Air Pirates Funnies. In the first issue, cartoonist Dan O'Neill depicted Mickey and Minnie Mouse engaging in explicit sexual behavior and consuming drugs. As O'Neill explained, "The air pirates were...some sort of bizarre concept to steal the air, pirate the air, steal the media...Since we were cartoonists, the logical thing was Disney."[59] Rather than change the appearance or name of the character, which O'Neill felt would dilute the parody, the mouse depicted in Air Pirates Funnies looks like and is named "Mickey Mouse". Disney sued for copyright infringement, and after a series of appeals, O'Neill eventually lost and was ordered to pay Disney $1.9 million. The outcome of the case remains controversial amongst free-speech advocates. New York Law School professor Edward Samuels said, "[The Air Pirates] set parody back twenty years."[60]

also Mickey Mouse and copyright related: http://animationanomaly.com/2011/07/07/animators-and-the-law-when-will-mickey-mouse-enter-the-public-domain/

"The distinction comes when Mickey Mouse is used as a tool to sell things. In that capacity, he is a trademark that is for the exclusive use of the Walt Disney company and anyone it licenses the character to."

and just as some advice/side note from someone who works with Disney property every day. . . dont with Disney. they dont like it when you do that

[Saintsfan]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

The idea of Luck in a Colts jersey isn't original, and therefore isn't copyrightable. However, gladsadmad's expression of Luck in a Colt's jersey is original and copyrightable.

Good, you seem to somewhat know your stuff. This could be a fun discussion on learning copyright laws.

Can I take Mickey Mouse (non original) and add devil horns to him and call it my original expression?

Potentially yes, provided that you pass the Fair Use test I mentioned earlier, otherwise Disney could sue you for infringement (they still might sue, but the test would determine who wins). The thing is, only your specific image would be protected. You wouldn't own the idea of Mickey Mouse with horns.

That seems crazy to me. I don't think changing an original gets rid of the original copywrite. If it's clearly supposed to be Mickey Mouse, or to resemble Mickey Mouse, you'd get your backside sued off. Although that doesn't seems totally similar analogy (Luck's image wouldn't be protected in the same way as a cartoon character's).

This does a good job of explaining what fair use is and how it's determined. Remember, all accused infringers, who claim fair use as a defense, have to pass a 4-factor balancing test. So Devil Mickey will have to be examined under it.

Examples of things that have been ruled to be fair use:

-2 Live Crew's parody of Roy Orbison's "Pretty Woman", recorded and released without the record company's permission

-A Beanie Baby Collector's guide, containing photos of all the Beanie Babies

-A coffee table book about the Grateful Dead featuring photos of some of their tour posters

-A picture of a Barbie doll inside of an enchilada

-The book, "The Wind Done Gone", which was "Gone With the Wind" as told from the perspectives of the slaves.

What's NOT Fair use:

-A book of Seinfeld trivia questions, not licensed by the people who hold the rights to the show

Nothing in that wiki article suggested to me that there would be a legal case for gladsadmad's work. I can't see a commercial case at all really. You'd surely have to show a link between ESPNs facebook page and it's profits and then a link between the image of Luck and traffic on the ESPN page. Neither seems an open and shut case.

Given that gladsadmad didn't produce the image for commercial purposes it would be tough to show any reason for the case?

[CrookedThumb]

Well keep in mind, we're discussing two separate copyright issues in this thread:

1) Did gladsadmad infringe on any copyright by making the Luck photo?

2) Did ESPN infringe on gladsadmad's photo?

The fair use wiki I posted goes primarily to the first issue. gladsadmad, to me, is probably ok to make and post his Luck photo here because I think his photo passes the Fair Use test.

ESPN doesn't have that defense for what they did to gladsadmad's photo. They simply just took his work and posted it on their Facebook page. With what I have learned in my Copyright class this semester, I believe that is infringement unless gladsadmad gave ESPN permission to use his work; but you're right, it's tough to prove damages (though maybe not, I have no insight or knowledge to how the photo relates to their profits, and I'm not going to take any guesses on that).