
The Gap Rips Off Hobbyist's Flickr Photo for Baby-Sized T-Shirt - stonesixone
http://sfist.com/2011/02/01/the_gap_rips_off_local_hobbyists_fl.php
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Samuel_Michon
Side by side comparison:

[http://www.flickr.com/photos/cdevers/5402217217/in/photostre...](http://www.flickr.com/photos/cdevers/5402217217/in/photostream/)

So sure, it's obvious that the shirt's designer used Chris Devers' photo to
start with. However, after all the alterations made (turning it into monotone,
heavily posterizing it, cleaning it up), I would say it's fair use.

Of course, it would've been nicer if GAP had simply licensed the photo.

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dangrossman
I don't think fair use means what you think it means, and I don't think this
use does well in any of the four factors the courts use to consider a fair use
argument. It's a derivative work IMO, and all that is questionable is whether
the original photograph is an original and creative enough piece to be
protected in the first place.

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Samuel_Michon
[http://en.wikipedia.org/wiki/Derivative_work#The_fair_use_de...](http://en.wikipedia.org/wiki/Derivative_work#The_fair_use_defense_in_derivative_work_cases)

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georgemcbay
On the one hand, yeah, they pretty clearly used his photo as a reference
here... on the other hand, it isn't like he designed the Jaguar himself. He
simply captured the light bouncing off one that already existed in an okay but
not particularly noteworthy photo.

On the third hand, this will probably turn out to be one of those situations
where The Gap had nothing to do with the design and got it from an external
freelancer who passed it off as his/her own.

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JacobAldridge
Link to cdevers' Flickr post -
<http://www.flickr.com/photos/cdevers/5402217217/>

and the specific Creative Commons license he chose (through Flickr) to apply
to the image - <http://creativecommons.org/licenses/by-nc-nd/2.0/deed.en_GB>

Fairly explicit about attribution, no derivative works, and no commercial use;
all three appear to have been violated here by Gap or (as georgemcbay points
out) an external freelancer toying around.

Edit: I tend to assume ignorance over malice, so assuming it was a freelancer
let's assume they didn't realise their derivative work would ever end up on a
Gap shirt. They may have played with the image 18 months ago, stored it
somewhere, shared it somewhere, forgotten or mis-remembered its origins,
submitted it on an unlikely spec, and 'oh shit, that's right, I shouldn't have
done that, and of all the designs I've ever submitted _that's_ the one that
gets through!'.

Said freelancer won't be accepted by Gap again. Gap still needs to do
something to mitigate the brand impact. Choose whichever is the cheapest of
pulling the line, publicly apologising, or offering a token compensation
amount (not linked to sales or anything that could be construed as actual
licensing of the image) subject to details not being revealed.

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krig
I don't know american copyright law, but in Sweden we have something called
"verkshöjd". Meaning a work has to meet a minimal standard of
creativity/originality to be considered copyrightable. I sincerely doubt this
photo would meet those requirements. On the other hand, the design based on
the photo would. As would the design of the car itself.

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mzl
While the photo might not meet the bar for "verkshöjd"/originality, the photo
would still be under copyright in Sweden. For photos that are not original
enough, the copyright term is 50 years, while photos that are have a term of
photographers lifespan+70 years.

~~~
krig
Clearly, I don't know swedish copyright law either. "Not a lawyer" is the
default on the internet, right?

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bradleyland
Devers' response seems to lack perspective. Consider the size of The Gap.
Outside of clothing designed in-house and commissioned with subs, The Gap
likely buys product lines from various mills around the globe. Any idea how
difficult it must be to clear the IP of every photo used on every SKU in the
Gap catalog?

Yes, it sucks that his photo was used, but because of the amount of processing
done to the photo, it's unlikely that any automated system would have caught
the link, if that kind of thing even exists.

I can virtually guarantee that no one from a managerial or corporate level
endorsed the theft of Mr. Devers' photo. That's the exact opposite of what
managers want, and they're engaged in a battle with their supply chain every
day trying to avoid the very thing that has happened here.

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jergason
Wow, there are some NSFW (in links to unrelated stories) on that site. Heads
up to the rest of you guys if you care about that sort of thing.

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austinB
I say if we cut any retailer some slack at this time it should be GAP. Years
of rampant store growth resulting in complete mall saturation, a multi million
dollar re-branding campaign pulled days after releasing and now this??? I
remember when it was cool to wear a GAP 'est. 1969' hooded sweatshirt in
elementary school.

