Cross posted from Frederick Leatherman Law Blog

Wednesday, December 18, 2013

Good afternoon:

I spent the morning attempting to identify the photographer who produced the stock image of the American flag that George Zimmerman apparently used to produce his “original painting” that he is offering for sale on ebay. I use the word “apparently” because it looks like he downloaded the stock photo from Flickr, photoshopped it by adding the words and changing the dimensions and colors, projected the image onto a canvass and painted the image rather like painting by numbers.

If you have any doubt about how he did it and whether he significantly changed the original, check out this video.

(h/t to Rachael and Dolphinocean for finding this video)

The Getty image

Getty identifies the photographer as Manuela Krause and states that she owns the copyright.

Getty offers her photograph for sale at prices ranging from $15 (280 x 174 px (3.89 x 2.42 in.) – 72 dpi – RGB) to $361 (4972 x 3082 px (16.57 x 10.27 in.) – 300 dpi – RGB).

The image bears Getty’s watermark to prevent people from downloading and reselling it as their own work. Upon purchasing the image, the purchaser can download it without the watermark.

The licensed or authorized use of the photograph is “royalty free,” which means that the purchaser can resell the image commercially after purchasing it from the seller.

This does not mean that it goes into the public domain where anyone can use it for any purpose without attribution.

Pursuant to the Berne Convention, Manuela Krause retains the copyright and moral right to be credited as the photographer who created the image. Neither Getty nor anyone who purchases the image from Getty can claim to have created the photograph. Any person or organization who does claim to have created it would violate her copyright. Therefore, Manuela Krause has a potential copyright infringement claim against Zimmerman, assuming she can prove that he copied her image.

EarlG in the DU article said they purchased the right to use the Getty image on tee-shirts more than 10 years ago. This significantly predates any other claim to own the right to sell the photograph.

The Shutterstock Photo

The Shutterstock image bears their watermark, which prevents people from using it or representing it as their own. The image is displayed on the first of four pages displaying 381 images that belong to the Awen Art Studio in Plovdiv, Bulgaria. The Awen Art Studio’s main page at Shutterstock says that it has been a member of Shutterstock since 2009.

No information is displayed indicating when the image was created, by whom or when they acquired it. The studio identifies the image as a stock photo of an American flag, claims they have the copyright, and identifies the image with this identification number: 74692756.

Shutterstock is also selling the right to use the image commercially without having to pay a royalty fee.

I do not know when, where, or under what circumstances the Awen Art Studio acquired the photograph.

The Flickr Photo

Looks like Hoch Sollst Du Leben may not be a real person. His name in German means: High Thou Shalt Live.

Hoch Sollst Du Leben posted his “copyrighted” image in 2006, three years before Awen Art Studio registered at Shutterstock.

The photograph of the flag on Flickr that I linked to in my article yesterday leads to a 404-page-not-found message.

(h/t to Donna at my site who tipped me off to this development)

Removing the site, instead of calling a press conference and expressing indignant outrage, suggests that de Leben may not be on the up and up. I doubt he created the image, but cannot prove where or how he obtained it. He may have sold the image on a royalty free basis to any number of people or organizations, including the Awen Art Studio, but neither he nor any subsequent purchaser can legitimately claim to own the copyright, which remains with Manuela Krause.

Anyone, including George Zimmerman, could have downloaded the image for free from Flickr because the image was not protected by a watermark.

Conclusions

Since the image was protected by a watermark at Getty and Shutterstock, I doubt Zimmerman obtained it from either source, unless he paid for it.

I regard that as a theoretical but improbable possibility.

I suspect, but lack sufficient evidence to prove that GZ obtained the image for free by copying it from Flickr. I cannot eliminate the possibility that he projected a watermarked image onto a canvas and painted over the watermark, but regard that possibility as unlikely.

I believe EarlG at Democratic Underground has demonstrated the process that George Zimmerman used to create his “original painting.”

I also believe that he fraudulently misrepresented that he created it. A person cannot take another person’s work, tweak it a bit, and legitimately claim that they created it. In order to legitimately claim they created the work, they would have to change it in some significant manner. I do not believe the process that EarlG described meets that standard.

Finally, we cannot forget that the value of his “original painting” is based on his claim that he created it. If John Smith were offering it for sale at an ebay auction, I doubt it would sell for more than $20.

As I’ve said all along, I believe Zimmerman’s effort to sell his “original painting” is an attempt to commit criminal fraud and not protected by the fair-use exception to copyright law.

Definitive conclusions require further investigation.