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

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

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11 pointsstonesixone12 comments

Side by side comparison:

http://www.flickr.com/photos/cdevers/5402217217/in/photostre...

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.

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.

http://en.wikipedia.org/wiki/Derivative_work#The_fair_use_de...

I don't think it's obvious at all that they used his photo. In the Flickr photo, the car is parked on the street, so anyone could have come by and shot a photo of the same car. If the car belonged to a local resident, it would probably be parked frequently in the same location, and if the photo was taken at a similar time of day, it would have had the same reflections, lighting, shadows, etc. as the Flickr photo. So Devers should have proof that this didn't happen before he publicly accuses someone of stealing his photo. (I'm not saying Gap didn't steal it, I'm just saying the burden of proof rests on the accuser.)

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.

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.

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.

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.

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

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.

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.

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.

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