Copyright Infringement in Painting From Photographs
Painting from photographs has become increasingly popular in recent years, with many artists using photographs as a reference for their paintings.
However, painting from photographs can also lead to copyright infringement if the artist uses a copyrighted picture without permission.
In this article, we will explore the legal aspects of copyright infringement in painting from photographs and provide tips on how to avoid infringing on someone else’s copyright.
Copyright Law and Painting from Photographs
Before we can understand copyright infringement in painting from photographs, we need to understand the basics of copyright law.
Copyright law gives the copyright owner the exclusive right to reproduce, distribute, and display their work.
This means that if someone else wants to use the copyrighted work, they need to get permission from the copyright owner.
When it comes to painting from photographs, the copyright owner is typically the photographer who took the photo.
If an artist paints a picture based on someone else’s portrait without permission, they are infringing on the photographer’s copyright.?However, there are some limits to copyright protection.
The Rights of the Copyright Owner
Copyright law grants the owner of an original work the exclusive right to reproduce, distribute, and display their work.
This means that no one else can make copies of the photograph, distribute it, or display it without the copyright owner’s permission.
The owner may choose to sell or license these rights to others, but they retain the ultimate authority over how their work is used.
This is intended to protect the economic and moral rights of creators and encourage continued innovation and creativity.
The Limits of Copyright Protection
Copyright protection is not absolute. There are some situations in which a person can use a copyrighted work without the copyright owner’s permission. One such situation is fair use.
Fair Use and Painting from Photographs
Fair use is a legal doctrine that allows people to use copyrighted works without the copyright owner’s permission under certain circumstances.
This legal exception is determined on a case-by-case basis, but there are four factors that are typically considered:
If an artist’s use of a copyrighted photograph falls under fair use, they may be able to use the original photo without the copyright owner’s permission.
However, fair use can be a complex legal doctrine, and it is often difficult to determine whether a particular use is fair.
Related Article: Copyright Infringement and Fair Use
Is a Painting of a Photograph Copyright Infringement?
In general, creating a painting based on someone else’s photograph may be considered copyright infringement if the photographer has exclusive rights to reproduce and create derivative works based on the source material.
Infringement
a. Derivative work
If you create a painting that is a direct copy of source material, or if you make only minor changes to it, such that the painting is considered a derivative work, it may be considered a copyright violation.
For example, if you create a painting that is nearly identical to a famous photograph, such as “Migrant Mother” by Dorothea Lange, it may be considered copyright infringement.
b. Substantial similarity
If you create a painting that is substantially similar to a picture, it may also be considered copyright infringement.
For example, if you paint a portrait of a person that is based on a photograph, and the pose, expression, and other elements of the painting are very similar to this source material, it may be considered copyright infringement.
c. Exact copy without permission
If you create a painting that is an exact copy of a picture and you sell it without permission from the copyright owner, it is considered copyright infringement.
For example, if you create a painting that is a copy of a picture from a famous photographer, and you sell prints of the painting without obtaining a license or permission, it is copyright infringement.
Not infringement
a. Fair use
If you create a painting that is considered fair use, such as a parody or commentary, it is not considered copyright infringement.
For example, if you create a painting that parodies a famous photograph or critiques the original work, it may be considered fair use.
b. Just using as a reference
If you create a painting that is based on a picture but make significant changes to the composition, style, or other elements, such that the painting is considered an original work, it is not considered copyright infringement.
For example, if you paint a landscape that is inspired by a photograph but you change the color scheme, add new elements, or alter the composition significantly, it may be considered an original work.
c. Public domain photograph:
If the print you use as a reference is in the public domain, meaning it is no longer protected by copyright, you are free to create a painting based on the photograph without violating anyone’s copyright.
d. Permission obtained:
If you obtain permission from the copyright owner of the photograph, such as a license or agreement, you are free to create a painting based on the photograph without infringing on the owner’s copyright.
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e. Personal use:
If you create a painting based on a photograph for your personal use and do not use it commercially, it is not considered copyright infringement.
For example, if you create a painting based on a photograph of your family or a landscape you visited, and you hang it in your home or give it as a gift, it is not considered copyright infringement.
Related Article: Check out the following linked articles to know more about them.
Examples of Copyright Infringement in Painting from Photographs
Here are some examples of copyright infringement action in painting from photographs that can help illustrate the potential pitfalls artists should be aware of:
Direct reproduction: An artist creates a painting that is an almost exact replica of a copyrighted photograph without obtaining permission from the photographer.
This scenario is a clear case of copyright infringement since the artist has not added any new expression or meaning to the original work.
Minimal alteration: An artist paints a scene based on a copyrighted photograph with only minor changes, such as slightly different colors or a small addition.
In this case, the painting may still be considered infringing because the alterations are not significant enough to create a transformative work.
Unauthorised commercial use: An artist creates a painting based on a photograph that is protected by a Creative Commons license that prohibits commercial use.
The artist then sells prints of the painting without obtaining permission from the photographer. In this scenario, the artist is infringing on the photographer’s copyright by violating the terms of the license.
Mashup without permission: An artist combines elements from multiple copyrighted photographs to create a new painting without obtaining permission from the photographers.
While the resulting artwork may be transformative, the artist has still used copyrighted material without permission, potentially leading to a claim for copyright infringement.
Sharing on social media without permission: An artist creates a painting based on a copyrighted photograph and shares it on social media without obtaining permission from the photographer.
Even if the painting is transformative, sharing the artwork on social media without permission can still be considered an infringement, especially if the original photographer objects to the use of their work.
These examples illustrate the importance of understanding copyright law when creating paintings from portraits.
Cases: Copyright Infringement Painting from Photographs
Case of Prince Photographic image
Photographer Lynn Goldsmith granted Vanity Fair permission to use a picture of artist Prince in 1984.
The print would be given by the magazine with consent to an artist who would use it as inspiration for a portrait of Prince.
The finalist for the position was Andy Warhol, who used Goldsmith’s photograph as the basis for 16 other pieces of art.
The license, however, only allowed Warhol to create and publish one piece of art using the image.
The AWF was acknowledged in Vanity Fair’s publication of a new version of Warhol’s image following the death of Prince in 2016.
Goldsmith discovered that her picture had been used without her consent when she learned about Andy’s Prince Series.
In response to Goldsmith’s inquiry over the Prince Series, AWF filed a declaratory judgment petition in district court, asking for a ruling on whether there had been any copyright infringement or whether the series met the criteria for “fair use.”
Goldsmith filed a counterclaim, alleging infringement of copyright.
AWF was granted fair use against the allegations of copyright infringement by the District Court. However, the Second Circuit reversed that decision in favor of Goldsmith.
The case highlights the complexities of copyright law when it comes to derivative works and fair use. It also shows the importance of obtaining proper licenses and permissions when using copyrighted material.
Richard Prince Wins Appeal in Cariou v. Prince Copyright Infringement Case
In 2009, photographer Patrick Cariou filed an infringement suit against artist Richard Prince, the Gagosian Gallery, Lawrence Gagosian, and Rizzoli.
The copyright lawsuit was over Prince’s “Canal Zone” series of paintings, which included photographs from Cariou’s book, “Yes, Rasta.”
In 2011, a U.S. District judge ruled against Prince, and the defendants were ordered to destroy remaining copies of the catalog and unsold paintings using Cariou’s photographs.
However, in a significant victory for Prince, an appeals court largely overturned the ruling in 2013, except for five paintings that were deemed to require reevaluation for claims of fair use.
Why do People Paint from a Photograph When There is a Risk of Infringement?
There are several reasons why people may choose to paint from a photograph, even though there is a risk of copyright infringement.
Firstly, using a photograph as a reference can be an effective way to create realistic and detailed artwork. The photograph provides a clear and accurate representation of the subject, making it easier for the artist to capture its likeness and details.
Secondly, painting from a photograph can be more convenient and accessible than painting from life. The subject may not be available to the artist at all times, or it may be difficult to capture the desired lighting or pose in real life.
Using a photograph allows the artist to work on their own schedule and in their own space.
Finally, some artists may simply be unaware of the potential legal and ethical implications of painting from someone else’s photograph.
Copyright law can be complex and confusing, and it’s not always clear what is permissible and what is not.
Despite the potential risks, many artists continue to paint from photographs.
Please read the original version of this article on the Bytescare Blog to learn more about it.