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I came across a discussion where a photographer attempted to reach out to an online clothing store for using his/her intellectual property without permission. (Pictures below)

In my opinion, the photographer is stretching the definition of derivative works in their claim, as the drawing is pretty abstract, and there is no evidence that it was indeed derived from said photograph.

Therefore, I'd like to know if the photographer is justified in their claim.

I've read this question, but it isn't quite applicable to this scenario, I think.

Drawing vs photo

  • Is this photograph famous or included in a stock-photography resource, or otherwise widely available? – bdb484 Apr 19 '18 at 5:54
  • The photograph is uploaded on Facebook (and Instagram), with ~5k followers. A google image search shows some re-uploads on Imgur etc, but those are probably not reproduced with permission – Edwin Chua Apr 19 '18 at 6:00
  • OK. And which photo is it supposed to be infringing? The top and bottom photos are different. – bdb484 Apr 19 '18 at 6:03
  • They superimposed the drawing on the top photo (there's a dog underneath that drawing in the bottom photo). It's not side-by-side. I made a mistake. I'll update the photo – Edwin Chua Apr 19 '18 at 6:09
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If the drawing is derived from the photograph it is infringing. If it isn’t derived from the photograph, it isn’t.

Fair use/dealing defences may apply and, if the transformation is sufficiently widesweeping it may be considered a new original work.

  • In this case, it's really one party's word against the other. It would be hard to prove that the drawing is derived from the photograph. – Edwin Chua Apr 20 '18 at 2:57

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