PetaPixel

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


 
 
  • Saul

    Better Call Saul!

  • http://www.betanews.com Tim Conneally

    Gap Inc has a history of this kind of shady behavior! In 2006 Old Navy (A Gap Subsidiary) ripped off a flyer design from the Monitor Records band The Oxes, and mass produced shirts with the band’s name and imagery on it.

    http://en.wikipedia.org/wiki/OXES#The_Old_Navy_t-shirt_fiasco

    He should talk to those guys!

  • http://www.betanews.com Tim Conneally

    Gap Inc has a history of this kind of shady behavior! In 2006 Old Navy (A Gap Subsidiary) ripped off a flyer design from the Monitor Records band The Oxes, and mass produced shirts with the band’s name and imagery on it.

    http://en.wikipedia.org/wiki/OXES#The_Old_Navy_t-shirt_fiasco

    He should talk to those guys!

  • Barry

    Pay up Gap!

  • http://noinput.net/ Jim Carter III

    If you walked into GAP and stole the shirt they would stop you. Since they clearly stole from Chris, I say he contacts his local news or someone who can raise awareness on what happened.

  • Sherpa

    I always assume that whatever I post on Flickr is going to be eventually reproduced somewhere. I think it’s a bit naive to think otherwise. Reproduction is the sincerest form of flattery?

  • Cally_sharp

    this happened to a friend of mine by the brand ‘forever new’ but it was much more obvious than this example and lawyers told her there was no chance she would win if it when to court. its so sad!

    you can read about it on her blog http://lightning-heart.blogspot.com/search?updated-max=2011-01-08T18%3A47%3A00%2B10%3A30&max-results=5

  • Cally_sharp

    this happened to a friend of mine by the brand ‘forever new’ but it was much more obvious than this example and lawyers told her there was no chance she would win if it when to court. its so sad!

    you can read about it on her blog http://lightning-heart.blogspot.com/search?updated-max=2011-01-08T18%3A47%3A00%2B10%3A30&max-results=5

  • http://twitter.com/cvprojecten Christian Vermeulen

    I guess I would make Gap pay me some percentage of their earnings on these clothes?
    Since they are in production already it’s pretty hard to rewind that, and anyway it’s kinda cool that Gap uses your picture!

    If necessary than do get a lawyer and sue them!

  • amg2000

    Pretty obvious the photo was used inappropriately by The Gap. Hope Chris gets compensated for the usage, plus damages.

  • http://twitter.com/floatingmeme Steve Withers

    I’ve had an image I posted on Flickr end up on a tourism web site. I didn’t mind. I get loads of free stuff from the Internet and I saw it as me giving something back – part of the wider sharing that goes on every day. If Chris Devers is a professional photographer or graphical artist, I could see him being upset. But if he just posts pics on the Net for anyone to see….then that’s what they did. Yes..they violated the terms of the Creative Commons license….and only for *that* reason would I chase them up over it. The integrity of that license needs to be maintained and you only do that by asserting it.

  • http://www.facebook.com/wingedpower Wing Wong

    Seriously? Why do people think it is ok for a company to come take your imagery, use it to make millions, and not give you credit or compensation? That isn’t flattery. It’s insulting and thievery.

  • http://twitter.com/punyweakling Lemon

    What he should actually do is simply send them an invoice. If they don’t pay it then threaten legal action for non-payment. If the image has been clearly published under a restricted license then Gap have knowingly ignored that and willfully bypassed contacting the artist to discuss licensing for commercial use.

    If they don’t do the right thing take them to court.

  • http://twitter.com/cvprojecten Christian Vermeulen

    You have a good point about giving something back to the public domain for everything you take from it daily.
    But I do make difference between a multinational company who has the means by far to compensate you and some tourist center that might be on a tight budget and don’t even make profit by selling a product which holds your picture.

  • Beth

    You should contact these folks if you haven’t already – at least for some more exposure.

    http://youthoughtwewouldntnotice.com/blog3/

  • IP rules

    Flattery? What’s that? Can it pay my rent? Also, it’s extremely naive and dangerous to just assume Intellectual Property laws will be ignored and shrug it off like it’s no big deal. Do you enjoy going to see good movies with serious budgets and listening to music and reading books?

  • Sherpa

    If the photographer in question was a professional? had hired a crew? pulled the proper permits? even got permission to shoot the vehicle from the owner? and then worked for hours in post to make that image? I think it would be reasonable for him to seek damages. Personally I think he should be happy that some graphic designer found it interesting enough to reproduce.

  • Sherpa

    If the photographer in question was a professional? had hired a crew? pulled the proper permits? even got permission to shoot the vehicle from the owner? and then worked for hours in post to make that image? I think it would be reasonable for him to seek damages. Personally I think he should be happy that some graphic designer found it interesting enough to reproduce.

  • http://twitter.com/gillyarcht gilly youner

    Gap would be best served if their crisis management consultant told them to quickly cut a fair deal to pay full credited amount due for imagery, save a whole bunch of bad pr and darn lawyers fees….turn it around to artistic tribute, rather than blatant disregard for artist rights.

  • Sherpa

    Using Flickr to showcase one’s professional work is like leaving the keys to the candy store in the hands of child with a sweet tooth. Come on. This image is like a billion others. Dudes strolling along and sees a car he likes. Snaps the photo and moves on. If there was anything professional about it I could see the concern.

  • Jules

    I’m guessing that someone in their art department pulled it off flickr and sold the adapted art work as their own. There is a good possibility that their art director had no knowledge of it. That doesn’t make it right and he should be compensated. It is really hard now a days to check to make sure that everything people claim is their own, actually is just that. It may be an individuals fault and not the company’s.

  • Camanarac

    Is there an authorithy really concerned about Creative Commons licenses?

  • http://www.facebook.com/people/Daniel-Austin-Hoherd/576367461 Daniel Austin Hoherd

    In the words of The Joker, “If you’re good at something never do it for free.”

  • alex

    I’m not naive enough to assume that everything I post online under a Creative Commons license would be safe, but come on. Gap is a huge corporation. Even though I, like others, am assuming that it was sold to Gap’s art department, Gap should step up and take responsibility for this indiscretion. It is a copyright license, whether or not “an authority” is concerned about it.

  • Phil K

    Bottom line: the photograph is his, not theirs. They simply disregarded any copyright and used it without permission, or even asking in the first place. It’s a pretty simple case, if laws mean anything. It’s not about how “professional” or not the photographer is, it’s about the principle of legal rights, and Gap should be made to pay good money as a deterrent for future misdeeds. Otherwise we condone almost all copying and stealing of intellectual property. I’m almost willing to bet that had Gap simply asked for permission to use the image as the basis for a piece of graphic art to possibly end up on t-shirts and such, the photographer might have even given them that permission, with some small perk in exchange… but they didn’t ever receive permission to use it, simple as that.

  • Ricardo

    I’m on the fence on this one. They are not using the original picture. Couldn’t that be considered fair use, a “transformative work”? Warhol?

  • Anonymous

    Ricardo: No Derivative Works — You may not alter, transform, or build upon this work.

  • B71

    This is why creative commons is an absolute SHAM. If you want to protect your work, file your images with the US Copyright office and set your default in Flickr to All Rights Reserved. Anything less and you’re asking for it…

  • B71

    And here lies the difference between hobbyists and professionals. Pro’s know that if they’re work is good enough to be published, it’s good enough to be paid for. Hobbyists feel honored if their work is reproduced somewhere.

    Creative Commons is destroying the stock photo market, by the way. Go look at Wired.com and see how many photo’s are up there with the byline: “Flickr user so-and-so.”

  • Skorpion9750

    This is why I leave a watermark on most of the pictures I put on flickr.

  • just me

    It’s stealing. ’nuff said.

    And if if you’re happy for your pics to be reproduced, then that’s o.k, but don’t expect the same from everyone else.

  • Ricardo

    Fair use would preclude the CC license.

    “application of a Creative Commons license may not modify the rights allowed by fair use or fair dealing or exert restrictions which violate copyright exceptions”
    [http://en.wikipedia.org/wiki/Creative_Commons_licenses#Applicable_works]

    See also: http://en.wikipedia.org/wiki/Derivative_work#The_fair_use_defense_in_derivative_work_cases

  • VancouverCameraExpert

    Sherpa. You’re an idiot.

  • Sherpa

    I knew it wouldn’t be long before a troll appeared. So what’s your bright opinion? And remember opinions are like…

  • http://drewshannon.net Drew Shannon

    Except that Gap clearly copied the exact image, and the photographer specifically highlighted where the images are exactly the same. I may be misunderstanding your point here, but it’s not like Gap took a similar image as a coincidence.

  • Ricardo

    As long as there is sufficient original work done on top of the “source”, it can be considered fair use under copyright law. But that distinction is up to judges.

  • VancouverCameraExpert

    Who’s the troll? You’re entitled to your wrong opinion. I don’t know where the shift occurred, but when exactly did the universe decide posting anything online made it open season to use that content for free?

    Be it text, imagery, video, whatever… if someone has definitively stated their usage requirements, be it CC or commercial terms.. it is what it is.

    What kind of nitwit (other than you Sherpa) actually defends a conglomerate’s commercial use of an individual’s property for financial gain without fair compensation?

    Keep on with your feable-minded keyboarding. At the end of the day you set your own value. And apparently you value yourself so little you see your content as valued at nothing… much like your opinion.

  • http://intheviewfinder.net/photoblog/ Rich

    Get a lawyer pronto

  • http://drewshannon.net Drew Shannon

    I strongly disagree with you. Creative directors should know that they generally get what they pay for, and if pros can’t convince people that their stuff is worth paying for, that’s nobody’s fault but their own.

  • Jhracer3

    This is like lawsuit bait, he’ll get a few 100k out of it no problem. You people saying its an honor, or that creative commons doesn’t matter are retarded. Its copyrighted, and they ripped it off, case closed.

  • VirtualVA

    Money talks; bullshit walks. Gap should pay for the image and a percent of the sales. Sherpa works for, has friends at, or has some connection to Gap. Has to for his misguided opinion.

  • http://twitter.com/1chammann Christoph Hammann

    What do you think of this situation? What should Devers’ do?
    Well, get a lawyer and make them pay! No use posting this to special interest internet fora.

  • Peti

    Who says Gap modified the original image? Perhaps they purchased a modified image from someone *else*, who could potentially be the one at fault. It would be good to hear what Gap has to say for themselves so that the speculation can end.

  • http://www.facebook.com/profile.php?id=503459164 Tyler Webb

    I wish I could like this more than once!

  • BigTallGates

    Yeah, I’d sue the f#ckers and let the courts decide what percentage I get. I’d then pay the legal fees with said compensation, reserve a bit for myself for time wasted, then give the rest to charity – perhaps a local photography school.

  • http://twitter.com/technoshaman George Por

    Contact Creative Commons and have the issue escalated by its legal experts.

  • Dave H

    Invoicing is fine for granting a licence for one-time use (such as publication in a newspaper), but Gap are presumably reproducing this image repeatedly and selling the garments based around it on an ongoing basis.

    So I think it would be more equitable to demand a share of revenues from the sale of all garments that use this image. This will inevitably require legal action, as Gap will just ignore/deny/stonewall at first (UK tabloids who steal images do this all the time, and only back down when the photographer shows that they mean business).

    The worst thing to do would be to do nothing. That would further legitimise this sort of image theft.

    Good luck.

  • Dave H

    There’s not a court in the civilised world that would judge this as “fair use”. It’s simply, obviously, blatantly not.

    “Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.” (http://en.wikipedia.org/wiki/Fair_use)

    Pretty sure that Gap’s theft of this image, is not one of those examples, nor would it conceivably ever be judged to be “fair use” under any other legal test.

    You’re surely not going to claim that Gap are using this to review or parody the original image, are you?

  • NF

    As far as I understand it Creative Commons is not the same as relinquishing the copyright. You maintain copyright, but allow free use of the photograph with limitation set out by the creative commons license. By deliberately using the image without attribution, in a commercial work, and in a derivative form, GAP is infringing Dever’s copyright. If he has registered the copyright with the US Copyright Office, he can sue for punitive damages from Gap, but if not he can only sue for damages equaling the total worldwide revenue from all products that infringe on his copyright, in addition to forcing Gap to stop using his copyrighted image. Even without punitive damages, Gap is still has a large liability for the copyright infringement.

    I’d recommend that Chris Dever gets in touch with a copyright attorney and look into filing suit against Gap. Given the likelihood of a verdict in favor of Chris and the size of Gap’s liability, I am sure there are lawyers who will take the case with their only payment being a percentage of the damages awarded or settlement.

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

    You’re not related to Shepard Fairey by any chance, are you? It’s theft, period. They did not have the right to reproduce it, they did, they stole it.