There have been several threads recently on WetCanvas forum and in art based groups on LinkedIn, all on the same topic of using other peoples photographs as the basis of a painting. This is a regular topic of course, variants coming up all the time across the web. On Etsy and Flickr it's usually someone complaining that their work has been stolen. In the WetCanvas and LinkedIn forums the issue typically comes up in the form of a question such as “Is it OK to create a new work on the basis of a photograph that's not mine?” This raises both legal and moral questions, so it is never going to have a definitive answer. The question also relies on a number of inbuilt but unstated assumptions, so I want to start by unpicking it. I'm going to talk in terms of painting, but the discussion could equally relate to printmaking. Some specific issues arise in respect of collage and I'll come back to them later. I’m writing from a UK perspective.
In one respect it is very clear and very simple - painting a copy of a photograph is making a derivative work (the term used in the legislation ). If the work produced is sufficiently different from the original it can become a new work and be protected by copyright in the same way as the original. However, only the copyright holder can give consent to the making of that derivative work. (At least in the US and UK - what I've read suggests this comes from the Berne Convention so the same probably applies elsewhere but don't take my word on that.) That isn't what I originally believed until I did the research. I confused the establishment of a new copyright with the question of consent - as do I think many others.
What isn't clear and probably never can be, is the point at which using an image as a reference becomes using it to make a copy. There have been numerous cases where painters have made almost literal transcriptions of photographs and placed them in major shows as original work. The most recent of these that I'm aware of was the case of artist Jason Levesque, who discovered his photographs had been copied by another artist Josafat Miranda and exhibited at the SCOPE Miami Art Fair. Miranda didn't admit to making copies and didn't credit the photographer. It turned out that he had also copied work by another photographer, again without acknowledgement or permission. To be clear this is not a case of someone painting a landscape based on someone else's photograph. These were studio based photos of women in distinctive poses and costume, copied almost to the last stand of hair. The image below shows the painting on the left and the photograph on the right.
The painter did contact the original photographer saying that the paintings were a 'homage' but that doesn't really work without knowing what is being paid homage. To show that this was not an isolated example here are some others copied from the work of photographer Marie Killen. He was in the end forced to withdraw his paintings and destroy them.
I don't think there is much doubt that the paintings infringed on the creative rights of the original photographer. It doesn't matter whether the photographs are any good, whether they are artistically original, whether the photographer can draw, or whether the paintings are 'better' than the photographs (all points made in comments on various news reports of the case.) In this case the legal position is clear – the copyright to the image rests with the original photographer and no copies, including painted versions like these, can be made without their consent. That consent can be given on whatever terms they wish. The painter was in breach of that copyright. This begs the question of when, if ever, the use of a photograph is legitimate.
At the other extreme, it is my opinion that if I assemble 200 or 20 or even 2 photographs of a scene or a building from magazines, books and the web, to use as references, but I don’t literally copy any of them in making that painting, then there is no breach of copyright. There may be exceptions where the only way to see the scene or building is from private land, but in general this will be the case. As an example lets take this monotype image of mine.
This is based on a memory of seeing the famous ‘Golf Balls’ of the Early Warning Station on Fylingdale Moor in North Yorkshire. I’ve been to the location several times, but I needed some references for how the domes sat in the landscape. They were replaced with a new structure some years ago so the option was not there to take my own. Instead I turned to Flickr. A search there reveals over 1000 results, although some show the moor or other locations on it. I printed out a half dozen or so and pinned them up on the wall. After a while I made this print - in a completely different studio. I’ve posted a selection below.
I don’t believe that my print is a copy in any way of these photographs. The use I made of the reference material was legitimate and did not breach copyright.
I’m sure there is a point somewhere between the two examples I have used where the balance shifts. I think though, it is impossible to define that point in advance. The common myth that if you change 10% (or 20% or 30% – like all myths there are variations in the telling) you are within the law just isn’t true. How do you measure 10% change?
Even so, it has always seemed to me that some artists can be just a bit too precious about protecting their copyright. In one discussion for example, on LinkedIn, an artist described chasing away a photographer taking photographs of her booth at an art fair. It seems doubtful to me that a general photograph of a display would offer any real risk, but the paranoia that has developed encourages such behavior. In another case, on Flickr, an artist layered about 200 photographs of the same building, all found on Flickr. The resulting soft focus image was only just identifiable as a building, but that didn’t stop people raving on about breach of copyright.
