PetaPixel

Copyright Controversy After Appropriated Photo Used to Win Art Contest

bugcompare

In the two photographs above, the bottom image is a photo-manipulation created using the top image. Are they completely separate works of art? What if we told you the second photo was created without the original photographer’s permission and submitted to a contest as an original artwork? What if we told you it actually won?

That all actually happened last year, and the images are at the center of a copyright skirmish.

First, some background: BMW MINI Cooper has been running a marketing campaign based around art contests. Visit the website MINI Space, and you’ll find regularly held contests with tens of thousands of submissions and valuable prizes given to the winners.

For a recent contest based on the theme “Check-mate,” 23-year-old Frenchman Romain Sarkal Eloy submitted this photograph:

winning

Titled PapilioChessBoard, the photo won 1st place in the contest and earned Eloy a new MacBook Pro laptop.

Here’s what the contest said in announcing the winner:

We were mesmerized by the attention to detail displayed in Romain Eloy’s checkered insect. It blends excellent macro photography with sophisticated digital rendering to create a stylized image that blurs the line between the real and surreal.

What the announcement and the original description didn’t say, however, was that the image was a Photoshopped version of this photograph by photographer Kevin Collins:

original

Collins was never contacted for permission, and he never allowed his photo to be manipulated and published without attribution — much less as an entry in a contest. (He did Creative Commons license the photo, but required that any use carry attribution).

What’s more, each of the contest comes with guidelines that state, “Your submission must be 100% original work.”

We hear that the contest was contacted by the second place winner regarding the violation. Their response was that the photo was not a violation of the rules or copyright due to the fact that it was “manipulated enough” to qualify as original artwork.

Here’s a side-by-side comparison of the original and the “new artwork,” just to give you an idea of the extent of the manipulation:

comparison

At what point does a photograph become Photoshopped enough to qualify as “100% original work,” and as something separate from what the original photographer created? Is this enough?


Update: Here’s a quote from the response the second place winner received from Minispace after multiple emails over a number of months:

“[Eloy] digitally manipulated it enough – wittily retouching the moth’s spots into checkers – for it to classify as his own artwork, and for us to select it as first-place winner. Eloy’s work is not in breach of any copyright infringement laws and as such, we will not be making any changes to our winners selection and/or allocation of prizes.”

Photographer Kevin Collins tells us,

When I release photos with Creative Commons licenses, I have the intent of helping out students, scientists, and nonprofits … giving them detailed images to use on posters, websites, research papers, etc.

I’ve never had the intent of helping a thief and rule-breaker win a MacBook Pro from a company that turns a blind eye to copyleft violations.


Update: The contest has taken action regarding this case. Here’s what the MINI Space Team told us via email:

Regarding the MINI Space “Checkmate!” design competition, it has been brought to our attention that the 1st place winning entry violated the competition rules. We have since taken the concerns of our community seriously and looked into the matter in thorough detail.

We are excluding the winning entry retroactively from the competition.


Thanks for sending in the tip, Steve!


 
  • KLjahjsaq

    well sue him…. damn copyright pirates.
    nobody has to mess with MY images!!!

  • http://www.facebook.com/david.tribby David Tribby

    Sarkal Eloy pulled a fast one. He should be forced to relinquish the title and prize to the 2nd place finisher. Sounds like BMW just doesn’t want to admit they got duped. He CLEARLY broke their own rules. Sarkal should be ashamed – you got caught pal, your a scam artist, a phoney. ..Yes it is “excellent macro photography”, and it’s all Kevin Collins.

  • http://www.flickr.com/photos/thisisbossi/collections/ Bossi

    100% sounds pretty clear to me… You could make an argument anywhere between or including 1% and 99%, but it definitely isn’t 100% original.

  • http://www.bobcooleyphoto.com/ bob cooley

    Clear copyright violation.

    A similar example: Thierry Guetta (aka Mr. Brainwash) has been sued (and lost) numerous times for Photoshop manipulations of photographers’ work, including Glen Friedman’s famous Run DMC photo and Dennis Morris’ Sid Vicious photo. Guetta’s images were more manipulated than the sample above.

    And as per the contest rules, this is no where near 100% original work. This is a shame.

  • Rob Elliott

    Even if it isn’t a violation of Copyright, it’s a violation of the rules of the contest He took an image cropped it, and ten altered 1/4 of the image left and played with the levels a bit.

    That is not 100% orginal.

  • Sno

    Isnt there some base that says it has to be at least 70-80% altered to consider your own? Forgive me if Im wrong on that statement, Im curious.

  • eraserhead12

    From MINI Space: “We were mesmerized by the attention to detail displayed in Romain Eloy’s checkered insect. It blends excellent macro photography. . . ”

    Why yes, that is excellent macro photography. It’s just not his.

  • http://www.facebook.com/leoabreuphoto Leonardo Abreu

    Wow… I would punch this guy… Shame!!

  • http://www.facebook.com/ballookey Ballookey Klugeypop

    If the rules stated that the work must be 100% original, then I don’t see any reasonable interpretation of that other than the photograph must also be taken by the digital artist.

    Maybe I could see if he’d created an illustration based off the photo, assuming he didn’t just jank it up with Photoshop filters and call it an illustration, but used the photo as reference for drawing his vision.

    This though? This is clearly copyright violation, and all the more unforgivable since the original photographer had clearly outlined his wishes via Creative Commons license. One is not being sincere if one thinks changing the pattern of spots and submitting the result without attribution is within the letter or spirit of the law or contest rules.

  • Alan Dove

    Did he have a model release for the moth?

  • elektrojan

    ;-)

  • http://profiles.google.com/ksuwildkat Rob S

    1 – He broke the rules of the contest and should be disqualified.

    2 – He violated the copyright since use under creative commons required attribution

    3 – He failed fair use test:

    the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    – Since it was entered in a contest to gain material advantage, fails first test.

    the nature of the copyrighted work;

    – This was a pretty unique image. Its not like it was a generic moth. Fail #2

    the amount and substantiality of the portion used in relation to the copyrighted work as a whole

    – He took a black/white/blue month with round areas and made it a back/white with square areas. Otherwise the moth is exactly the same. Fail #3

    the effect of the use upon the potential market for or value of the copyrighted work

    – Its safe to say that no other company will want to use that moth to promote their item because it is now associated with a Mini comest. The value of the image is now much less. Fail #4

    So he failed to follow the rules of the contest, the terms of the license and fair use doctrine. Pay up.

  • 3333

    is he russian?… they steal everything…

  • http://www.facebook.com/igor.kennn Igor Ken

    hahhaahha

  • jt

    NO. Altering any image is still a copyright violation – % means nothing -
    that’s a fallacy. Mr. Collins could become very wealthy man over these
    violations. I hope he does.! Find the .gov site for copyrights, you’ll find the laws easy to understand.

  • Mansgame

    1. Did you take the picture?
    2. Did you use the picture?

    if #1 is No and #2 is Yes, then you stole the picture if you didn’t ask before using.

  • Rhyockey

    Clearly violated the copyright. Clearly violated the contest rules. BMW copped out. Always wanted one, Not anymore. If I took one of there car designs and tricked the grill a little, would they be so nonchalant? I hope the original photographer gets at least a free MacBook out of it.

  • Kryn

    Yep, that does not classify as “sufficiently manipulated”, and not only does it violate copyrights of the original, it also violates the terms and conditions of the competition, which clearly states 100% original. This is not 100% original. It’s not 95% original, it’s not even 50% original. It’s probably about 10% original if that. Guess the jury was corrupt and bought by the winner…

  • kryn

    Actually, that’s the chinese that steal and copy everything… Badly too…

  • jude

    Normally I might say something intelligent but for this there really is nothing to say but wow BMW is extremely stupid.

  • Nick

    I mean, if it was from a completely different angle then fair play, as it would of had to of been done from near enough scratch which is fair game IMO. But the fact its the exact same angle, only mirrored and the insects pattern changed.. That’s just plain cheeky and in full breach of copyright.

  • http://twitter.com/AndrewHess77 Andrew Hess

    Well, he did “take” the picture, in a sense.

  • A_Lwin

    “It blends excellent macro photography with sophisticated digital rendering…”

    This is my favorite part. I wonder which sophisticated techniques were needed to make the spots darker and into rectangular shapes.

  • Jim Stanley

    Nice summary !

    On a personal note I think artists / photographers should steer clear of creative commons licenses myself – it’s a dilution of copyright.

  • you’re an idiot

    Did you read the article? He’s French.

  • Jim Stanley

    The photograph was available for anyone to use under a cc licence, without permission, so long as there was an attribution to the photographer.

  • http://www.bobcooleyphoto.com/ bob cooley

    interesting – the link no longer goes to the contest winners. BMW finally realized they were getting bad publicity; hopefully they did right by the 2nd place (actual contest winner) – but somehow I doubt it…

  • Mr C

    It’s not exactly an original image in the first place though, is it? There are hundreds of similar photographs of the leopard moth so to cry foul about copyright seems to me to be a bit silly.

  • http://www.bobcooleyphoto.com/ bob cooley

    A CC license goes further than that; the user cannot use the image for commercial gain, attribution or no… Entering a contest with an image that isn’t your own equates to commercial gain.

  • snapshot1

    I hope this is your attempt at sarcasm. If not, you can say this about any photograph.

  • Mr C

    You can and I would.

  • Mickey Dee

    Interesting development on the Mini Space website…the “Check-Mate” contest can no longer be accessed or any evidence of it be found. Here’s hoping that the hub-bub created here (and on some photography sites we all frequent) has brought the agency to it’s senses.

  • Abdul Cader

    Your doubt is right, they still call me 2nd place winner in my MINI Space profile. While Eloy still ‘owns’ that image in his Tumblr & in his Facebook.

  • http://www.facebook.com/people/Rob-Nourse/812218065 Rob Nourse

    Stunning…. somehow this fellow managed to violate the spirit (if not the letter) of both the contest rules AND copyright law yet still keep his prize. Forget about whining to the agency… tell BMW you vote with your dollars and this isn’t helping.

  • Dgym

    I don’t see that this is greatly different from the work of Roy Lichtenstein. His most famous works are nothing more than retouched versions of other people’s work. It becomes art because he puts something in a new context.

  • Thomas Casey

    Maybe it should work like sampling in music. A 50/50 split of any earnings.

  • http://www.facebook.com/adam.glover.5891 Adam Glover

    So apparently this means I need to stop working on my photography skill and start trying to improve my photoshopping skills.

  • Finlandeer

    The macro shot looks just like a snapshot. That’s not saying that the manipulation is rightful, but i think this is getting a bit too much attention.

  • http://www.facebook.com/people/Rob-Nourse/812218065 Rob Nourse

    If Roy takes work with ‘attribution required’, but does not… and enters the derivative in a contest (for gain) which requires 100% original work then indeed there is no difference and he too would be guilty. If my child shoplifted from the local corner store but argued someone else did it last week I’d tan his hide twice as hard for being stupid as well as dishonest.

  • Dgym

    I agree, he should have attributed, but I don’t think that’s really the issue here. And I understand the 100% original work clause appears to indicate that his work should not have been accepted, but that’s a matter between the artist and BMW, and also not the issue. The issue, as I understand it, is that people believe this is plagiarism. I have cited Roy Lichtenstein not because I’m trying to suggest this is alright because somebody else did it, but because I don’t see why one example is accepted and the other isn’t when they are both instances of new context being created around an existing piece of work. Speaking as an artist, I fear that if we are too protective of our work, we limit the creativity of the industry as a whole.

  • Getreal

    Creative Commons is NOT a good move as much as amateurs who are *desparate* to live the “dream” of having work published may think. If you give your work away, you are giving it AWAY, period and that tells the world it is an effing free-for-all.

    Sorry, but you set your self up for this when you decided to “Share Your Photos, Watch the World” on a garbage heap like Flickr…

  • FlatSixForever

    A photo contest? BMW has really hit bottom. It’s bad enough they make the MINI Brand a fat bloated non-sportscar. What’s next? Calling the Uber-Ugly M-6 desirable? Not since the Issetta has BMW’s lack of design and engineering been so visible. BMW at one time was a premium brand. Now it’s just copy-cat.

  • fotomon

    Violation of the rules? Absolutely.
    Violation of © laws? Clearly.

    Will Kevin get some big bucks for the © violation? Maybe, maybe not. Beyond the fact that Mr Elroy might dwell in France and I’m not sure how that would work in US courts, I can only hope that Kevin routinely registers all his photos and specifically has already registered this image, with the US Copyright Office, prior to the violation. Then and only then, does he have any chance of getting any compensation or his lawyers fees paid from either Mr. Elroy or the people behind Mini Space. If he hasn’t done the “paperwork” with the © office, the image is still his and he could still win in any court trial on this I feel pretty certain, BUT, unless he is very well off financially, all he will get back is the verdict. No financial compensation for each violation, no lawyers fees paid out to win it, etc.. Maybe, just maybe, the value of a new MacBook Pro, but guarantee his legal fees would be much much more. So hopefully his © is secure. Then he has options. The same goes for each and every shooter that values his work. Register your images!

  • David Woolf

    Clone tool in CS6

  • http://www.bobcooleyphoto.com/ bob cooley

    Sorry to hear that Abdul – hope this works out in your and Kevin’s favor!

  • http://www.bobcooleyphoto.com/ bob cooley

    Don’t you know anything?? That moth is famous! and because he is a notable figure and didn’t expressly obtain a retraining order regarding the photographer, it has NO expectation of privacy or that anyone should ever act decently towards it! If it weren’t for us photographers, that moth and his natural beauty would be NOTHING!!! (/sarcam) :)

  • http://www.bobcooleyphoto.com/ bob cooley

    A couple of minor corrections here.

    You can still register your images post-infraction. You just need to register them before you litigate (they have slightly more expensive rush registration for just such cases)…

    And (unfortunately) before he can actually receive punitive damages (the compensation for each violation), or legal fees for a copyright case, he has to prove actual loss of income from the violators use of the image. Its very hard to do, unless you have a great lawyer and are willing to out-spend the other party in legal fees.

    If BMW actually used the image in an ad, it would be much easier to prove loss of income, but then you have the hurdle of litigating against a very wealthy company.

    I’m not saying that’s right; but having been there, I can name that tune in 5 notes…

  • http://www.bobcooleyphoto.com/ bob cooley

    Read up a little bit more on Creative Commons. CC actually gives you the rights to control your imagery both for charitable purposes (or free use to those you prescribe) – but still allows you to control rights-management over commercial use. It’s not merely “everyone gets to use my images for free”, and allowing CC licenses does not take away a photographer’s right to control their images. It’s just a way of giving license for specific purposes where the creator isn’t interested in profiting from the imagery.

    I used to be a CC skeptic too, until I learned more about it. it’s merely a sub-license issued under your Title 17 protections.

  • Jim Holmes

    Taking an original and changing it does not make the new image an original. Just a manipulated image.

  • Abdul Cader

    it worked.. finally they announced me as winner! all because of kevin’s help..
    thanks for all your support!