Painting pictures using photos from books - How dangerous is that!

Mona_lisa_small_copyright

Many artists use photos from books as their reference.  While studying elements of photos and illustrations to assist composing an original composition is generally fine, reproducing significant portions of an illustration can be copyright infringement.

As both a patent attorney and artist, I occasionally see practices which I consider to be highly dubious.  The most commonly recurring bad practice is to reproduce, in paint or other media, the subject matter from a photo in a book and to then go and sell your resulting work.  This is a very bad practice for a number of reasons:

  • from the viewpoint of artistic integrity, your work can hardly be called original if you are copying someone else’s composition and work;
  • you may be copying a work in which copyright is still current, or from a source where copyright exists.  Reproducing that image in another media is still copyright infringement;
  • by selling your work, without a disclaimer that you have stolen and reproduced someone else’s work (sounds more serious when we word it like that, doesn’t it), you are misrepresenting the nature of the work being sold and could be prosecuted under the Fair Trading Act (NZ and some other countries);
  • the person who purchases your work, and the gallery which displays them, may also be subject to legal action for copyright infringement (think of them as being participants in the fencing and acquisition of stolen goods if it helps).

So yes, copying someone else’s work is serious stuff.  It is basically theft, and there are potential consequences if you are caught.

But, isn’t it established law that you only have to change something 5%/10% to avoid copyright issues?  Sorry, but that is a big resounding NO!  Like every other patent attorney, I wish I could get my hands on the idiot who started that urban legend.  Try arguing that before a judge and get an instant reality check in response.

Over the last decade there have been some substantial changes to copyright law – mainly tightening up copyright owner’s enforceable rights, and moral rights.  What are moral rights?  Simply think of this in terms such as where someone took a portrait you painted of your grandmother, and then reproduced it with her wearing leather and chains, and having a moustache. You are likely not going to be pleased if you started seeing this around.  In a more subtler form, moral rights issues may arise from inappropriate use of your copyright works (would you like to see it on the flyer of the local strip joint) or modified in such a way that you consider your original work to be denigrated.  While this is an extremely simplistic explanation, the purpose is to demonstrate that trying to change your reproduction of an original copyright work to avoid infringement, may not fully address other issues.

So what can you do, or not do.  Copying other persons’ works for the purpose of learning is a long tradition in the art world.  It is often how artists learn and perfect skills.  Even I have used inspiring movies as a reference for drawing exercises.  However there is a significant difference between educational private use, and commercial use (e.g. selling your reproduction).  While there are provisions in the NZ Copyright Act for private and educational use, the practical reality is that most copyright owners, in most cases, are not going to pursue you for such private exercises even if you do fall outside of specific exceptions under the Copyright Act.  However, cross the line to commercial use and see how quickly things can change.

What can you copy?  Depending on the nature of the work, copyright in most artistic works may last 50 to 75 years after the death of the author (i.e. creator of the work) though this can vary from country to country.  Even if you are copying a renaissance artwork, be careful that you are not copying a reproduction of that work from a book in which copyright exists.  For instance, you might use a picture from a book published last year.  What you may not know is that the picture in the book could be a copyright work based on a recent photograph of the original work, where significant skill in setting up the lighting was exercised, and which has been extensively worked in the darkroom or Photoshop to produce the image in the book – there may well be copyright in the book image.  Consequently there may be hidden dangers of copyright.

Are there a general set of rules you can apply?  While every case needs to be considered on its own merits, there are some general rules the sensible artist can apply:

  • it is not good practice to copy someone else’s work, or a photo in a book, if you intend to sell your work;
  • studying elements of composition in a photo (in a book) and using this knowledge in the creation of your own original work is generally fine;
  • studying detail in a photo (e.g. feathers on a bird, the crest of a wave, etc.) to assist you in the creation of your own original work is generally fine;
  • as soon as you start to capture the essence of someone else’s work, or incorporate features which can almost be considered key to their work, you are on dangerous ground;
  • if you, without reference to someone else’s work, create a work which is very visually similar to someone else’s work then you most likely have not infringed copyright - imagine if your art teacher brings a parrot to class and has the class of 15 students paint the parrot – you are likely to have 15 versions of a parrot, where many will be very different and some will be very close in character.  Unless you were copying the picture of the person in front of you, each of those 15 renditions will be original works.
  • For copyright infringement, there has to be an act of copying.  As soon as you use anyone else’s original work as a reference, you are starting to get into potentially dangerous territory;
  • The publishers of most books are expert in copyright law and fiercely defend their copyright works.  Read the copyright warning page in any book and, after looking at how long and explicit most warnings are, ask yourself if this is the sort of business which will take any perceived breach of their copyright lying down.

What artists and students need to realise is that copying someone else’s work for commercial gain, even if it is a photo in a book, is not only bad artistic form but essentially is theft.  Also please realise that the 5% change rule is an urban legend (recently a friend, who is a lecturer, tried to get this point across to his class.  A number fiercely argued against his viewpoint, until he played the trump card that his personal patent attorney (me) had advised him).

At the end of the day, consider how you (as an artist) would feel if someone else was copying your work and making money from it.  This viewpoint often puts things into better perspective.

For more information see: http://www.iprima.biz/#/unregistered-rights/4518027779