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Gap Uses Flickr Photo for Clothing Graphic without Permission

Flickr user Chris Devers recently found that one of his photographs had been used by The Gap as a design for children’s clothes (here and here). The photo itself was published under a Creative Commons license requiring attribution, non-commercial use, and no derivative works — usage conditions that were completely ignored.

Here’s a comparison of Gap’s graphic overlaid on Devers’ photo (hover your mouse over the image to compare them):

Some portions were obviously modified (e.g. the grill), while others clearly indicate that the two images are related (e.g. the power lines in the windshield reflection).

Devers’ writes,

I have various thoughts about what’s going on here — for example, the mind-boggling idea that some unknown factory in southeast Asia somewhere is cranking out thousands of $16.95 tshirts with my photo on them on behalf of the Gap, and yet they never attempted to contact me about their use of my work — but I’m trying to keep most of my thoughts to myself until Gap has a chance to respond. [#]

What do you think of this situation? What should Devers’ do?

(via A Photo Editor)


Image credit: My photo of a Jaguar E-Type from Flickr being used on Gap clothing designs by Chris Devers


 
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  • http://twitter.com/lansingphoto Harrison Lansing

    Peti, even if the Gap purchased the “art” from a third party they are still liable for infringement as they are the people who published the copyrighted work. It would become an issue of joint liability.

  • http://twitter.com/lansingphoto Harrison Lansing

    If the child with the sweet tooth cleaned out the candy store it would be an act of theft. So would stealing a car that had the keys left in it. Yes, it’s foolish to give a child the keys to a candy store or leave the keys in your car; but doing either does not relieve the offender of their responsibility for their actions.

  • bri

    this is a bit of a joke isn’t it? I mean it’s probably wrong for them to have used the photo without permission of any sort.. but the photo is hardly a work of art.. it’s a snapshot of a car in a parking lot. and from a very common front angle. I mean come on. Anyone could have taken this shot.

  • BigTallGates

    Then the Gap designers should have gone out and taken it themselves.

    But then that would have cost them more money than just ripping off someone else’s photo. And there in lies the crux of the issue.

  • http://twitter.com/lansingphoto Harrison Lansing

    But “someone” didn’t. Chris did, and he copyrighted it. I don’t get why this is hard to understand.

  • Amanda1

    Yep, ripped off a photographer I know a few years ago. He hired a lawyer.

  • Adam

    I’m expecting Yahoo! to delete his Flickr account anytime now :-)

  • http://twitter.com/stinkykiller Omar Ramos

    I’m with you !
    Errors cost money.
    For any or other reason it’s Gap’s resposability !
    So, lawsuit them !

  • http://twitter.com/alexqgb Alex Bowles

    You’re oversimplifying fair use, Dave H. Your own citation contains the details.

  • http://twitter.com/alexqgb Alex Bowles

    That doesn’t mean Wired didn’t pay. It just means they didn’t overpay.

  • Dude

    “If there was anything professional about it”?!??

    If you create a work that has obvious monetary value to others (the photo was *valuable* enough that Gap thought it would help *sell* their t-shirts) then that IS professional work. That’s why Gap should have paid for it. It’s not like Gap was giving these garments away for free, right?

  • Dude

    If flickr amateurs and the CC are destroying the stock market, then perhaps “pro” photogs have vastly overestimated their worth and that of their work. The beauty of such a free market is that it tends to price things at what they’re actually worth. If Peter Lik can sell a print for $1 million, then to that purchaser it was worth a million bucks. OTOH, if some yahoo with a dSLR and soft box can shoot a nearly identical shot of a business handshake or an arrow in a bulls-eye, then maybe paying $$$ to Getty Images for such a shot isn’t really worth it.

  • Dude

    The courts will decide that without a registered copyright you’re entitled to actual provable damages. In this case, that’d be jack and squat. Good luck finding a lawyer to take that on contingency. Of course, you could always pay the lawyer $500/hr and he’ll take the case. But you’ll still lose or find that the settlement is less than the attorney fees.

  • Dude

    At least in the U.S. you must prove damages with “reasonable certainty.” And that, sadly, ain’t gonna happen here. Sux to be him. Maybe Gap, for PR reasons rather than legal ones, will cough up a couple shekels to make him go away. It’s a rip-off to be sure, but that’s life in the big leagues.

  • http://twitter.com/alexqgb Alex Bowles

    Sure, but in the meantime, isn’t a bit premature to be flinging poo with the fury of the poo flung here?

  • Bygeorge

    I would have my lawyer make a phone call or or three.

  • Dude

    How wonderfully naive. If it’s not registered he has to prove actual damages. No lawyer will take this case on contingency ’cause they no there’s no damages to prove.

  • Andrew

    Regardless of what anyone thinks of the photo – whether its “professional” or not – it IS THEFT..

    Time to talk to the local press, a lawyer, and see if the blogsphere can make some noise….

    Reminds me of the theft of the Hatian Earthquake photos by a press agency….

  • Manijehgolab

    what’s wrong with that….isn’t that a good way to advertise for the photographer?

  • Dave H

    Simplifying, certainly. There’s no need to paste entire reams of legal case history into a blog comment, when a summary will do.

    I’m not sure that I’m *oversimplifying* though. Either way, I cannot see any legal precedent, or logical support, for the idea that Gap’s use of this image can possibly qualify as “fair use”. It’s simply not credible.

    If you can demonstrate how this could be considered as “fair use” in defence of a breach of copyright/licence, I’m all ears.

  • Junkfmail

    That is not the definition of fair use. There are 4 factors in determining fair use. The first factor is if it’s non-profit. That does not mean that all non profit use is fair use but that alone would disqualify fair use. Also, there’s a factor that talks about transformative which would mean how much the image was changed. Once again, it’s not by much.

  • Junkfmail

    Someone once posted this that sums this up well.
    If I have a lion and you come and see it great. If you bring people to see my lion, great, but you can’t come and take my lion.

  • Junkfmail

    You can’t just take The Gap to court. All artwork is registered by the US copyright office even if you don’t register or put a mark on your art but unless you have the work registered you can not sue for the copyright infringement (with courts allowed to award up to $150,000 per incident. If the artwork was registered, then you could hire a lawyer on contingency and get The Gap to settle. If the work was not registered, it’s a uphill battle.

  • Junkfmail

    One you start a court case, you are liable for the other’s party’s legal fees if you pull out of the case. Unfortunately, you need to be careful about the approach you take.

  • Junkfmail

    Public Knowledge

  • Rob_p

    O yeah because the photographers name is written ALL over it! Stealing someones photo and using it to mass produce clothes and make a load of money? That photo should have been paid for with certain useage terms added. The photographer is in every right to get some money from this

  • Eddie1960

    it’s simple despite some of the vitriol above. His cc license does not authorize this kind of use. Simple. Contact a lawyer and negotiate a settlement. this has happened to others and it will happen again in future. (remember the prison inmate who stole an image for a license plate) This is commercial use plain and simple, and there is no benefit to the photographer unless he is properly paid for the image. I had a friend (Bobby Steele of the Misfits) have his artwork show up on knapsacks at Walmart, he had to fight them for several years over it.

  • Me

    Is Devers the car manufacturer ? Did Gap secure the rights to the car design from there ? There is no way to prove that a picture which could be from the manufacturer, and the single color outline of the car is really the same image… Honestly unless there is some watermark, I bet I could find an original picture of this car from the same angle as the manufacturer out there. How do you even prove it’s the same image. Did Devers secure the rights to use his photo from the makers of the car ? That’s questions I’d ask..

  • http://pulse.yahoo.com/_C2AJLSSQOUNEZLMTRJ5TLJEE6A DANEEN C

    WOW!! So not true. It’s not like a billion others. If so they could have had their staff just go shoot a picture of a car. That’s why there are still professional photographers even in the digital age when anyone can take a photo. And that lack of knowledge is also why anyone and everyone thinks they can be a photographer. So not true!

  • sal

    The fact that it’s the same image is irrefutable given the reflection of the power lines. One is surprised they weren’t removed in post by the garment graphic people. The car is in a public place, thus the photographer has every right to photograph and post. Photographer has right to create and sell prints and other media from this image as there is no copyright infringement upon Devers. Devers makes automobiles, not graphic design products. If photographer was manufacturing a motor vehicle for sale using Devers design, or if photographer was manufacturing small-scale replicas, i.e. Matchbox cars, or if photographer caused harm to the Devers brand or reputation, these all are potential areas of conflict which Devers may address. Gap may have to secure rights from Devers for use of car on the shirts, since they neglected to clear rights with photographer, this may be moot as the logo is not visible on the garment and the general outline of the auto may not be enough to warrant litigation on Devers’ part, but they have that option. Devers would pursue Gap, not photographer.

  • Salsthewest

    However, I did read this on NYT, posted by a reader, which speaks volumes about photography today. The writer addresses journalism, as in the written word, but it does apply:

    It’s the collision of what is called the cognitive surplus and the emergence of the “good enough” product. While professional journalists produce a superior produce, thanks to the internet and computer writing tools amateurs can produce work that is good enough. Furthermore what previously limited amateur journalism was access to publication. Today anyone can publish on a global stage for essentially free. The end result is that those who previously held a protected market position (professional journalists) are being subjected to competition by people who can basically do what they do simply for the joy of people consuming their ideas.

    There will be issues about making sure that quality journalism can still be supported, but the reality is that the value of the old writing set is much reduced and like an old mill worker the solution is to find a new way to make money, not cling to the old ways.

    Mike B, New Jersey

  • Popper

    That’s what I said about this silly artwork I saw at the Guggenheim a while back. Just a silly abstract thing, anyone could have made it. Tried taking it off the wall…

  • fotoman

    Hey Sherpa… I had a sweet tooth when I was a kid, stole candy from a store once. Guess what? I got punished by my parents, and I deserved it.

    What GAP needs is a good spanking. Theft is theft. Come on.

  • fotoman

    Yeah, I’ve taken about a billion photos in my day… and not ONE is even remotely like his. And who cares how ‘professional’ it looks! Heck, if I shot a casual walk-by pic with a $20 Holga and found my photo being mass-replicated on a pair of PJ’s, I’d be ticked too!

  • fotoman

    So what DO you do for a living, Sherpa? I’m curious. It’s definitely NOT photography related.

  • fotoman

    Photography at its core is about having an eye, NOT a crew… or a permit, or the world’s best post processing skills. Perhaps you should look up street photography. Ever heard of it?
    Think I’d rather hire this budding young photographer than the Sherpster. http://wayoutwest.tumblr.com/post/76160925/urban-street-photography

    :)

  • http://twitter.com/PetsPhotography Pets Photography

    Is there any update on this story?? It’s been a while…wondering what Gap’s response was.

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