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29-05-2010
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"Zara Boycott, Copyright Act and the Blogger Echo Chamber"
Passionate debate following the controversy arising around the alleged use of a photograph of the blogger Betty Autier (www.leblogdebetty.com) in a Zara t-shirt:


GANYMEDE KIDS (www.ganymedekids.blogspot.com)
Quote:
Tuesday, May 25, 2010

You may have heard by now that Zara is selling a shirt with an illustration that was based on a photograph of Betty from Le Blog de Betty without her knowledge and she is understandably annoyed! Apparently there is a similar shirt featuring a drawing based on Tavi as well. She posted the image of the shirt and the photo it was based on accompanied by "Zara, we have a problem." Maybe you were one of the 700+ people who left comments saying how ashamed they are of Zara, how they would support her in a boycott, how she deserves money and should sue them. With comments like "This is most certainly you, there’s no denying it, and it’s illegal! You are entitled to a cut of the profit as it’s your picture. Perhaps hire a lawyer … ?!" and "I find it completely absurd that people think you should feel flattered. They used your image without permission, it’s theft!" and "I would be flattered if i were you ! But it’s a bit silly to steal your image without even asking …" the reaction is clear that bloggers and their readers don't take kindly to this sort of thing!
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The offending shirt design, obviously drawn from Betty's photo, a serious blog-crime.
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If I found out that someone had drawn a cartoon version of me and put it on a shirt, especially a company as big as Zara, I'd feel confused and probably pissed off that I wasn't at least informed. However, that's probably as far as it would go, since an illustration is the intellectual property of the artist who drew it and no part of the original photograph was being used. The illustration is an original work. Does she have the right to complain? Of course! I'd probably complain too. Is it illegal for Zara to do this? Of course not, it's their business strategy. Regarding this strategy, an article in Businessworld magazine describes it as follows: "Zara was a fashion imitator."
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Zara's version of Miu Miu prints, very blogger-friendly.
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The business model of Zara and high street shops like H&M, Topshop, etc., is based on providing affordable versions of high fashion or current trends (bloggers themselves are obviously a trend right now, whether you like it or not). Curiously, Betty and many of the commenters who posted their outrage at this kind of "theft" often wear and praise these affordable versions of big brand garments. Consider Jeffrey Campbell: his footwear designs are generally derived from the work of another designer, just barely different enough to avoid legal recourse. That's not a drawing-of-a-photo level of copying, that's a shoe maker copying another shoe, the exact same product, cutting into the market of the original designer. He creates affordable knock-offs. I wonder why it is that bloggers seem to unanimously love Jeffrey Campbell and don't call for a boycott or describe him as a plagiarist. These brands give people what they want; at least one person in the comments said they owned the "Betty" shirt and didn't realize it was her, others said they were going to go out and try to get their hands on a "counterfeit Betty shirt".

Contrary to what many people apparently think, it is NOT ILLEGAL to draw an illustration from a reference image. This kind of thing is like a "derivative work", protected and described under the Copyright Act as “a work based upon one or more pre-existing works” such as an “art reproduction” (specifically mentioned in Title 17 U.S.C. § 101 of the US Code that outlines copyright law, which is similar internationally.) The creator of the derivative is entitled to the copyright of the parts of the new work they created so if they draw a totally new drawing, they are legally entitled to use it as their own, even if it's based on a photo or another piece of art. The original photo is the intellectual property of whoever took it, the drawing is the property of the illustrator who drew it, it's not even really derivative because it contains no part of the original! I left a comment on Betty's post, mostly to explain to commenters that this is not illegal and...it was deleted. I wasn't even rude!

To add another amazingly decadent layer of intrigue to this particular outrage, Danny Roberts of the popular Igor + Andre (the #1 blog under Art on Bloglovin with over 5000 followers) generally creates illustrations based on reference photos and is also generally loved and revered within the fashion blog community. For example, his painting of Alexander McQueen was recently featured on the cover of London's The Sunday Times Magazine:
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THIS IS AN OUTRAGE! Oh he's a blogger? I'll take 2 shirts and 5 etsy prints!!
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Left: Original photo, Right: art by Danny Roberts ($100 print)
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"WTF someone stole this girl's image and they're profiting off her face! THAT'S HER FACE!! Call a lawyer!"
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To reiterate, this artist creates derivative works based on reference photos and sells them as his own work and everyone loves it and calls him a genius. His illustrations are almost always based at least in part on a reference photo and I highly doubt he feels the need to ask the original photographer for permission, he doesn't credit them or post source images on his website and he's not legally required to! It's really common for an artist to use reference images from time to time, especially if they're working on a tight deadline and have lots of illustrations to make (probably like the artist who was hired by Zara to draw blogger girls or whatever). It's a good way to practice and again, not illegal! Danny Roberts has mentioned on his formspring that he makes enough money from his art to support himself and he has been hired by several legitimate publications. Is it hypocritical to think drawing from a photo without permission isn't "theft" or unoriginal when a fellow blogger is doing it? How about this:
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Not only is the Danny Roberts work a copy of a photo, it also copies the work of the original illustrator. Is this okay or do you already have a lawyer on the phone? Why is it okay for one person to do this but not someone else?
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Surely someone who makes their living by drawing illustrations from reference would not jump on the HOW DARE THEY DO THAT bandwagon, right?

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WOW! An illustrator drew something inspired by a photo without asking the original photographer! that is terrible!
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Am I committing blog-suicide by criticizing the popular kids? I understand that a vague version of his friend's "image" is being used for something without her consent and that is lame but from a business perspective the situation is identical to how he makes his living. I don't want to seem like I'm just throwing this guy under the bus, it's not like he hides his inspirations and I don't think he's "stealing", I just seriously wonder how anyone can think these situations are so fundamentally different. Please explain it to me! If Zara's illustrator does it then "OMG THE EVIL CORPORATION STOLE" but if a blogger/illustrator does it, it's "u r so creative" and "please find a publisher!! : D"? Where do you draw the line? I wonder how the original photographer of that McQueen photo feels, seeing what is obviously something based on his photo on the cover of a magazine and I doubt he is credited.

Zara screwed up, they should have hired Danny Roberts to copy photographs instead of a no-name illustrator and the shirt would be a #1 blogosphere hit! Instead, they've caused some serious unrest in their target audience. I think they'll probably apologize to Betty, maybe offer her a collaboration or some free clothes and it'll be "okay" to like Zara again even though they've profited off the work of others in the past and will continue to do so.

If you feel like boycotting Zara, are you also going to boycott Jeffrey Campbell and fill Danny Roberts' formspring with the vitriol of a thousand suns? Do you hate Zara but love H&M and Topshop? Are bloggers totally awesome underdogs, above the law, while big corporations are capitalist scum? Is it lame to not credit source images even if they're on the Internet for public viewing? Does an unrecognizable cartoon version of a blogger really infringe on their brand integrity? Would you get mad if you found out your favorite brand used a design that wasn't 100% original? Is anything 100% original? Should Andy Warhol get in trouble because he copied that one can of soup??? Should monetized inspiration blogs be illegal since they profit from the work of others!? Should we sue tumblr?!?!?!??!

Posted by Cory at 8:45 PM

To read the entire entry: http://ganymedekids.blogspot.com/201...d-blogger.html

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30-05-2010
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It definitely is somewhat ironic that the post below the one about how mad she is at Zara is of her wearing a Zara tee that is an obvious Balmain knock off. However I do understand this Betty person being pissed off, because it's not an idea or creation that was stolen, it's her face. That sure makes a difference. But it's still her own fault. It's the same for celebrities; once they decide to become public figures, they will lose any power over what their face or body will be used for. But why would anyone boycott Zara because of this?

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30-05-2010
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Zara is the shop for people who want desginer knock offs, so I don't undertsnad the anger.

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30-05-2010
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Theres a love/hate relationship between me and Zara.
I have a few things from Zara, mostly because they still still Dior Homme knock-offs, the old Dior, not the garbage with Blow sunnies and 3/4 pants or slouchy goth wear.
On the other hand I really hate Zara for knocking off designers, the snob in me says that if you want runway look, be ready to pay the big $$$. If not, leave it be. But honestly they are not the only ones who do that and sometimes I rather pay $20 for a striped polo shirt from Zara than $200 for striped polo with a bee on it, fit and fabric quality aside.
And I'd be pretty pi$$ed off too if I walked in a store and saw my face on a tshirt... Theres no way I'd feel flattered, I'd feel violated and boycott would the least I'd do.

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30-05-2010
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I would feel offended if they used a cartoon of my face without permission. Zara is wrong. But I once I had knowledge of a similar case as this, and the person lost, EXACTLY because it asked for a percentage of profits. Once thing is asking the T-shirt to be removed because you are offended your image is being used, another thing is asking to profit from it. I do not Know if bloggers, since they are virtually public figures would have the same "rights" as someone totally anonymous. I do not think Kate Moss, or the photographer, receives a percentage everytime her face his used for art for example.

But i would never boycott Zara because of the Knock Offs, are they really knock offs, when was the last time a designer was original?

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30-05-2010
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Quote:
Originally Posted by Psylocke View Post
It definitely is somewhat ironic that the post below the one about how mad she is at Zara is of her wearing a Zara tee that is an obvious Balmain knock off.
indeed normally they are all happy that they "copy" designer stuff really fast... but now they see the other site of it


b2t you always have the copyright of your picture even if they convert it into "art" (something new). But I have no clue what happens if you post them on a blog for "free" yourself and not via an agency... Reminds me of the Obama campain image.

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30-05-2010
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lol, there's no way I'm boycotting Zara, this is just silly. It's my favourtie shop and no, I don't buy most of the knockoffs, at least not the obvious ones. Topshop does it, H&M does it, etc. However it's crappy of them not to inform the blogger that they used her image. and LOL at Danny Roberts

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30-05-2010
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she shd get a cut 4 real

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30-05-2010
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I'm very sure that no one is gonna boycott Zara

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30-05-2010
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the sad thing is copying fashion work has become a way of business. it all started with the imitation handbags and now it's trickled into our favourite high-street locations.

i do find it quite awful that while they were utilising this idea and making the t'shirt they didn't find the time to actually inform this woman they are or wanted to use her likeness. if anything the bad publicity could affect sales but i doubt it. i'm not sure the legalities but i'm sure she could have a case seeing as they did actually use a personal image from her personal blog to sell a product without her permission. could be a privacy violation,i would suspect. and boycotting is great and all out of principle but for some people it's not really option if you have none.

and i do agree she at least deserves a percentage of what the shirt makes.


Last edited by Scott; 30-05-2010 at 12:32 PM.
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30-05-2010
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Quote:
Originally Posted by Scott View Post

and i do agree she at least deserves a percentage of what the shirt makes.
She cannot in any way ask for a percentage. The illustration is derivative of her photo, so no copyright infringement .
If she was a total anonymous person, she maybe could go to court and claim misuse of her image(face) causing her distress, damages etc. But the only thing she could request would be that the T-shirt would be taken down. If she asked for a share of the profits, it would be clear for the judge that no offense was taken for the use of the image, so the all case would fall down.
But being a blogger i do not even Know if this would apply, if she's not already a "public" person, plus it's not even her "real" image.

Still, Zara should have asked.

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30-05-2010
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Even though we'd all like to think that Zara would have had the sense to inform her first, the truth is that in the blogosphere, with one blogger posting pics from another, who posted their pics from someone else, there's no proof that they even knew who she was or where the image was originally from.

I'd be surprised if this ever went to court as some kind of copyright case. The only thing she can claim the right to is the face in the illustration, and I'm pretty sure someone's likeness isn't protected by copyright law.

As an aside I'm shocked she's complaining. I'd think that anyone who documents their life and wardrobe in pictures and posts them for strangers to see would be thrilled at the prospect of being immortalized...temporarily anyway. Something tells me that if they paid her in some way she'd be plugging the shirt, not calling for a boycott.

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31-05-2010
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^ I'm sure she'd have been happy to be asked for permission, and I actually think the illustration is pretty. I think, as Psylocke says, the real problem she might have is them using an image of her/stealing her face, as it were. It's not as if they stuck the original photograph on a t-shirt.
As for Danny Roberts, the real issue is whether the illustrations he does are, as a derivative work, sufficiently transformative to stand as works in their own right. But if Betty has a case against Zara for ripping off her photograph by making an illustration of it, the owners of the copyrights in the photographs drawn by Mr Roberts would also have a case against him for the same thing. And who knows, a court might not agree with me.

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31-05-2010
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But this has been around for AGES ... even before bloggers (are there people over 20 left in tFS?) .... have you seen Picasso's version of "Les Demoiselles d'Avignon"?Or most of Andy Warhol's work?This, my fellow tFSers is a very fine line .. I, myself cant even form a fully formed opinion on it.

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31-05-2010
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They were wrong for using her image. I don't think she can really do anything about it. There's a likeness between the picture and print but not a exact.

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