My photo of a Jaguar E-Type from Flickr being used on Gap clothing designs

I'm sure that The Gap has a totally awesome explanation for why this photo of mine, published under the Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0) license, is apparently being used on the Grey Pumice versions of the "Thermal body double" onesie (SKU #785589) and the 2-in-1 moto one-piece (SKU #785593) at gap.com.

 

The two images are clearly related to each other.

 

I eagerly await the Gap's response.

 

I have various thoughts about what's going on here — for example, the mind-boggling idea that some unknown factory in southeast Asia somewhere is cranking out thousands of $16.95 tshirts with my photo on them on behalf of the Gap, and yet they never attempted to contact me about their use of my work — but I'm trying to keep most of my thoughts to myself until Gap has a chance to respond.

 

This has come up, after all, on a Sunday afternoon, and I doubt the people there I tried to contact about this will find out until Monday morning. So I'll give them a day or so to formulate a response and get things moving to get this rectified.

 

That said, I appreciate all the Tweets & Re-Tweets, the articles in Jezebel & others, the mentions in local media, the Facebook comments, etc. Keep 'em coming, by all means.

 

But I'm going to try to mostly hold my tongue & give them a fair chance to respond before I write much more.

 

Your turn, Gap.

 

• • •

 

Addendum: By "your turn, Gap", I wasn't expecting anything like this.

 

• • •

 

News sources & blogs that have picked this up so far, in no particular order:

 

Jezebel | Did The Gap Steal This Image From Flickr? (absolute tsunami of traffic from this one, thank you)

• A whole bunch of people are getting here from Reddit, apparently via Gap Pulls A Shepard Fairey and Gap Steals a Guy's Flickr Photo for Baby Gap Outfit, but mostly from their home page (!!).

This Week in Photo | TWiP #187 — Crowd-Funded Photography

You Thought We Wouldn't Notice | My photo of a Jaguar E-Type from Flickr being used on Gap clothing designs

Photography on the Net, Canon Digital Photography Forums | GAP Clothing company allegedly rips off Flickr member's photo

SFist | The Gap Rips Off Hobbyist's Flickr Photo for Baby-Sized T-Shirt

news.ycombinator.com/item?id=2169414 (they don't really seem to do titles)

Reddit | Gap Steals a Guy's Flickr Photo for Baby Gap Outfit

PetaPixel | Gap Uses Flickr Photo for Clothing Graphic without Permission (very handy rollover illustration on this one, thank you!)

MediaBisto Unbeige | The Gap Accused of Stealing Flickr Photo, Reprinting Design on Shirt

Styleite | Did The Gap Steal This Car Photo From Flickr?

Styleite | Marka Hansen And The Trouble With Gap

A Photo Editor | Gap Pulls A Shepard Fairey

Lovelyish | Gap Steals Car Photo from Flickr

Geek | Gap accused of stealing Flickr photo for shirt designs

Small Aperture | Oh Gap, get it together!

Allston City Limits | Gone in 60 seconds (points for the original title on this one)

MakeupAlley | Horrible. Gap uses a Flickr users photo on tees without permission (chat board, need registration to see past comment titles)

Laughing Squid, and a whole bunch of other Tumblr users.

Secret Photo Nerds | -- (yet another registration-only discussion site, no idea what this is)

NU | Gap steelt afbeelding (Dutch; English translation: "Gap Steals Image")

Design Taxi | Did Gap Use Flickr Photo for Its Designs? (Is this a spam site? Bafflingly, the comments seem to be about something else entirely.)

Futomaki | Kolejny dzień, kolejna afera (Polish; English translation: "Another day, another scandal")

Panophoto | Gap utilise des images Flickr sans s'acquitter des droits (French forum; English translation: "Gap uses Flickr images without paying duties")

 

Thank you all.

  • Kenny Maths PRO 4y

    Go get them! I had some success with a newspaper who took one of my pics from Flickr without permission:

    Copyright Theft (Now Resolved!)
  • David Ritchie 4y

    Any update Chris?
  • Eddie Smith PRO 4y

    now old navy has done it to another photographer. seems to be the corporate culture
    www.petapixel.com/2011/03/24/old-navy-follows-in-gaps-foo...
    Any update on your end?
  • Chris Devers PRO 4y

    Eddie Smith Interesting. Very interesting.

    As for my situation, lawyers are talking, and I cannot discuss it further at this time.

    If & when this gets resolved, I'll post some kind of note to that effect, if I can.
  • Rippie: Contra Censura! PRO 4y

    Kenneth Younger (personal account) copyright infringement is a form of stealing, also commonly called IP Theft. it is so called in order to impress upon people what has really happened: someone's Intellectual Property has been stolen.

    bripi given that the license on this image stated, at the time, which is all that matters, NO commercial use and NO derivatives, there is indeed violation here.

    Eddie Smith Old Navy is a Gap Companies division, and they plow through even more graphics than The Gap proper do, i believe, for their constantly changing skus. i've wondered in the past how they find such disparate images without ripping anyone off. now it's clear that they don't.

    Chris Devers you got to the important point, and the rest is all parties deciding what is equitable in order to stay out of court, which would be disgustingly costly for all. good luck!
  • Kaká PRO 4y

    Rippie: Contra Censura! Absolutely right! Good luck, Chris.
  • Johan Klovsjö PRO 4y

    Anything happen in the last five weeks? I'm very curious about this case, and wishing you all the moolah you deserve.
  • Chris Devers PRO 4y

    Lawyers still talking, and I still can't comment further.
  • Amanda Lobo 4y

    I am an artist and a photographer and I thought if you painted something from a photo it was ok? Is that wrong?
  • Tim Pierce PRO 4y

    Painting an image by hand by copying a photo is still potentially a "derived work" of the original, and therefore a copyright violation. Anyway, this case is almost certainly a digital manipulation of the original photo, not an artistic reinterpretation.
  • Chris Devers PRO 4y

    Amanda Lobo

    • Your best first option is to contact the owner of the photo, tell them what you have in mind, and ask for permission. If they say Yes, there's no problem here.

    • If you want an answer to the abstract question of whether making a painting of an arbitrary copyrighted photo, your best bet is to speak to a copyright attorney about it.

    • That said, the copyright owner has the right to place their works under a broad spectrum of permitted uses, from throwing everything wide open by making the work public domain (in which case anyone can do anything with it without restriction), all the way to All Rights Reserved.

    • Speaking for myself only, I have chosen a Creative Commons license that permits some uses of my photos provided that certain requirements are met (attribution, no commercial works, no derivative works). However, on a case-by-case basis I'm willing to offer someone alternate terms if they ask in advance and let me know what they're interested in doing.

    • That said, if someone wanted to make a painting of one of my photos, I'd probably be delighted. In fact, this has already happened with me once before — someone used a photo I took at an Amanda Palmer concert to make a painting, which I thought was just fantastic:

    Original:
    Amanda Palmer with Boston Pops by Chris Devers


    Painting: [https://www.flickr.com/photos/47985143@N08/5193469291/]

    So, long story short: At least in my case, if someone wanted to make a painting as you suggest, I'd generally be fine with it as long as we had a chance to talk about it first. But in the more general case, your best bet is to talk to the copyright owner, or to an attorney.
  • Rippie: Contra Censura! PRO 4y

    a painting from a photograph is a derivative. therefor, depending whether it's been licensed, the new work can be infringing.

    furthermore, if the painting is a commission, gets sold or is exhibited with remuneration, it's been monetized, and can thus be infringing.

    if the painting, as shown in the example above, reproduces all or substantially or substantively all of the photo, it can be infringing.

    if the painting is not "reinterpreting" the photo for political, social or satirical commentary purposes, it can be infringing.

    absent a license, either "broadcast" or individual to the artist, it is infringement, and could incur dramatic costs in the penalty phase of the lawsuit after the decision.

    Fair Use is a tough defense, and simply citing a source from which a new medium presentation of the same image is made is not good enough. it will lose in court.

    if someone releases a work with CC license allowing derivative works, then it's all out the door unless other terms like monetization have been violated, or or lack of proper attribution.

    once a license allows a use, it cannot be UNallowed if the use took place during the life of the license. subsequent such uses can be, though, if they are new. unfortunately, the derivative piece will carry with it the terms of the license under which it was created, and is not generally a wholly "owned" piece of IP for the second artist, particularly if commercial or monetized realization occurs with the new piece.

    it's one thing to stab at a painting for practice from a photo and then never show it, never sell it, never utilize it in any way other than to learn/practice painting. that MAY be defensible.

    once someone has seen it, you're at jeopardy... and that's generally the point of visual arts.
  • Amanda Lobo 4y

    Wow I really didn't know that. I will deff. keep that in mind.
  • Amanda Lobo 4y

    Does anybody have a link to a website or book that I could read that could give me complete copy wright laws and rules for an artist/photographer? I know I will sound stupid but I never knew you couldn't do a painting from a magazine picture, or photo from google.?
  • ColleenM PRO 4y

    Amanda Lobo lobosphotography

    You may find this post informative

    waxy.org/2011/06/kind_of_screwed/
  • Chris Devers PRO 4y

    FASCINATING.

    Thanks for posting that.
  • Event Photos 4y

    Flickr seems to make it easier for people to grab images and think they can get away with it. Just like this -
    Copyright Infringement Violation by Ink Global, an international publisher. How shameful... Read the full investigation report by Pat Brunet by williamcho
  • Ashley Pomeroy 4y

    Looking up t-shirts today I spotted this, from back in February:
    www.guardian.co.uk/lifeandstyle/2011/feb/15/spain-fashion...

    "One of the world's largest fashion retailers which owns Zara stores and several other global chains has withdrawn a series of T-shirts from its shops after bloggers complained the company was copying their photographs from the internet."

    The resemblance was indeed striking (with the possibly complicating factor that the company was copying the likeness of people, rather than a car).
  • Chris Devers PRO 4y

    Ashley Pomeroy Interesting…
  • Junk Chuck 2y

    Did you ever reach any sort of resolution to this?
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