Copyright question- using someone's photo for your art

[Sam_Lowry]

I have a question about using copyrighted pictures. I’m guessing that this is legal and I’m just being paranoid, but I’d rather be too careful than not enough.

One of my favorite actors is Cillian Murphy. I found a cool picture of him (link here)that I decided to make a painting of.

First I edited the photo in some photo editing software to reduce it to just three colors. Then I projected that picture onto canvas, traced the picture, and painted the canvas. The end result (that I am somewhat proud of) is shown here.

So far I’m not selling any of my paintings, but I would like to know all the legal stuff in case I decide to. I know it wouldn’t be legal for me to make actual copies of the original photo and sell them, but is it legal for me to use the photo as a direct basis for my painting and sell it? I did trace the photo onto the canvas.

How much work must be added to someone else’s work before you can claim it is an original work? For example, I think I would be able to use that photo if I put it in a collage. But how many other things must be in the collage to actually make it a collage? Would I be able to blow up the picture, do one brushstroke of paint over the middle and claim it as an original Sam Lowry?

I know that copyright and art is a tricky business, so I’d really appreciate anyone’s answers. Thanks.

[Gfactor]

This is not legal advice. You aren’t my client; I’m not your lawyer. For specific legal advice, consult a licensed attorney in your jurisdiction.

Let me just review some basics with you.

1. Copyright protects a lot more than just the actual copyrighted work. 17 U.S. Code § 106 - Exclusive rights in copyrighted works | U.S. Code | US Law | LII / Legal Information Institute

One of the exclusive rights that the author gets is: “to prepare derivative works based upon the copyrighted work” Id.

2. A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 17 U.S. Code § 101 - Definitions | U.S. Code | US Law | LII / Legal Information Institute

3. This is subject to the fair use privilege:

§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

I’m not going to break write a whole law school exam answer on the topic here. See these links for more info:

http://www.colorado.edu/copyright/fairuse/student.html
http://www.straightdope.com/mailbag/mcopyright2.htm

Fair Use (FAQ) | U.S. Copyright Office

[Gfactor]

Here’s a good case on photos and collages: *Blanch v. Koons * (2d Cir. 2006): http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTY0MzMtY3Zfb3BuLnBkZg==/05-6433-cv_opn.pdf (use of portion of photo in collage fair use under the circumstances).

Here is a review of the case by fair use expert William Patry: The Patry Copyright Blog: Koons Affirmed (Don't Blanch)

[TimeWinder]

Most painting books I’ve read that talk about the issue at all specifically talk about this case–and they always say the same thing: using copyrighted materials as the basis for a painting is infringing, even if the painting looks much different from the photo.

Obviously there’s a point at which you’d no longer be infringing, but so long as the photo makes up the bulk of the work, I think you’d be in trouble. I’m not a lawyer, but I’d be really, really leery of trying to sell that painting (or even give it away or post it to a web site).

You’re also in somewhat of a grey area because you’re making a painting of a recognizable person without having a signed model release form from them. In general this is a no-no, but I believe the rules for celebrities are different.

[Acsenray]

[QUOTE=TimeWinder]
You’re also in somewhat of a grey area because you’re making a painting of a recognizable person without having a signed model release form from them. In general this is a no-no, but I believe the rules for celebrities are different.
[/QUOTE]

Model release forms are relevant only to commercial uses of a person’s likeness or image. If all you’ve done is make an image of someone for your own enjoyment, there’s nothing to worry about.

[DanBlather]

I had a friend that saw a picture of a dog and used it as the basis for a painting used on t-shirts. The likeness was so good the dog’s owner sued. I’m not sure how it ended up (there were issues of venue, etc.) but it still cost plenty to defend her.

[TimeWinder]

[QUOTE=acsenray]
Model release forms are relevant only to commercial uses of a person’s likeness or image. If all you’ve done is make an image of someone for your own enjoyment, there’s nothing to worry about.
[/QUOTE]

Yes, I meant this as part of the “if you sell or publish it,” sorry.

[Sam_Lowry]

Thanks for all the information. I will definitely seek official legal advice from a lawyer before I attempt (if I ever do indeed attempt) to sell any paintings based on other people’s photos.

[iamthewalrus_3]

[QUOTE=Sam Lowry]
For example, I think I would be able to use that photo if I put it in a collage. But how many other things must be in the collage to actually make it a collage? Would I be able to blow up the picture, do one brushstroke of paint over the middle and claim it as an original Sam Lowry?
[/QUOTE]
IANAL, etc.

You would be able to use the picture in a collage only if you purchased a print of it, and used that print of it in the collage. The copyright holder authorizes the print, and anything you do to it afterward (cutting it up, painting over it, etc.) isn’t copying. You would not be able to take the image and blow it up and use that reproduction in something, since you didn’t have a right to make the blown-up copy in the first place.

I’m not sure about selling the collage as an “original Sam Lowry”. I think you might have to make mention of the original sources, lest you be misleading. But that wouldn’t be a copyright violation.

[Sam_Lowry]

[QUOTE=iamthewalrus(:3=]
IANAL, etc.

You would be able to use the picture in a collage only if you purchased a print of it, and used that print of it in the collage. The copyright holder authorizes the print, and anything you do to it afterward (cutting it up, painting over it, etc.) isn’t copying. You would not be able to take the image and blow it up and use that reproduction in something, since you didn’t have a right to make the blown-up copy in the first place.

I’m not sure about selling the collage as an “original Sam Lowry”. I think you might have to make mention of the original sources, lest you be misleading. But that wouldn’t be a copyright violation.
[/QUOTE]

Interesting. I guess that makes sense. I’ve never done any collages and never gave much thought to them, I was just using collage as an example. But it’s good to know that I would need to research the legalities of collages as well.

[ENugent]

[QUOTE=iamthewalrus(:3=]
The copyright holder authorizes the print, and anything you do to it afterward (cutting it up, painting over it, etc.) isn’t copying. You would not be able to take the image and blow it up and use that reproduction in something, since you didn’t have a right to make the blown-up copy in the first place.
[/QUOTE]

False. In addition to the right to make copies, the Copyright Act gives the copyright holder the exclusive right to prepare derivative works - including putting a piece of the work into a collage. The Blanch v. Koons case cited above, which is specifically about collages, is clear on this (even though the actual use in this case was found to be fair). The only reason I won’t slam you for failure to look at it before spouting inaccuracies is that the link wasn’t working when I tried it. But as a general statement of law, your post is R-O-N-G wrong, and the posts by real lawyers that precede yours should have made it clear to you that you are wrong.

[ouryL]

Hey!

Didn’t Cec talk of this when he discussed Warhol and Campbell Soup?

[Gfactor]

[QUOTE=iamthewalrus(:3=]
IANAL, etc.

You would be able to use the picture in a collage only if you purchased a print of it, and used that print of it in the collage. The copyright holder authorizes the print, and anything you do to it afterward (cutting it up, painting over it, etc.) isn’t copying.
[/QUOTE]

This isn’t quite right. You’re talking about the first sale doctrine, 17 U.S.C. section 109:

§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner,** to sell or otherwise dispose of the possession of that copy or phonorecord.** Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A (e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on—
(1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A (d)(2)(A), or
(2) the date of the receipt of actual notice served under section 104A (d)(2)(B),
whichever occurs first.

17 U.S. Code § 109 - Limitations on exclusive rights: Effect of transfer of...

The final limitation to the First Sale Doctrine that concerns our discussion relates to the exclusive rights of a Copyright owner other than those shielded by First Sale. First Sale allows you “to sell or otherwise dispose of” a particular phonorecord without the authorization of the Copyright owner, but it does not impact any of the other exclusive rights the Copyright owner holds, such as reproducing the work in phonorecords8 adapting the work into other formats9 or publicly performing the work10

http://www.law.duke.edu/journals/dltr/articles/2001dltr0018.html

And see, Midway Mfg. Co. v. Strohon, 564 F.Supp. 741, 745 (N.D. Ill. 1983) (“Section 109 does not authorize adaptation and reproduction of a copyrighted work”)

Columbia Pictures v. Redd Horne, Inc., 749 F.2d 154, 160 (3rd Cir. 1984) (infringement for store owner to offer in-store showcase of videos to consumers despite first sale doctrine).

But see, *Annie Lee and Annie Lee & Friends Company, Inc. v. A.R.T. Company, *, 125 F.3d 580; 1997 U.S. App. LEXIS 25238; 44 U.S.P.Q.2D (BNA) 1153; Copy. L. Rep. (CCH) P27,686 (7th Cir. 1997) (§ 106(2) creates a separate exclusive right, to “prepare derivative works”, and Lee believes that affixing the art to the tile is “preparation,” so that A.R.T. would have violated § 106(2) even if it had dumped the finished tiles into the Marianas Trench–rejecting the notion that definition of derivative work should be read broadly, thus expanding author’s moral rights–disagreeing with two other Circuits)

[elelle]

As a photographer, who has had this happen with my images, specifically musicians, I’ll describe it from the original artist’s perspective:

The original (gorgeous, I’ll add) portrait took some work. It’s not just a snapshot. The photographer had to gain access to the subject, schedule the shoot, work with the artist to get a great shot, then, process the image, and do all post-production work. A high-quality image like that takes time and know-how. Basically, how would you feel if you, having developed your art to a high level, have someone come and take it, and pass it off as their own work?

Photography has always suffered from the perception of, “Ah, anyone can do that, click, click…”, but I’ll attest to the fact that it is intense work to get a great image. A good photographer puts their heart and soul into their work as much as any other artist, and that should be respected. As said on this thread, there are legal strictures in order to protect artist’s rights.

In your case; a fine interpretation of the original photograph, but definitely derivative. If I were the photographer, and saw you selling that piece, I’d immediately recognize it, and be rather pissed. This, did, in fact, happen to me; a local artist did a pencil drawing from a photograph I took (again, not a snapshot, but a carefully composed and worked for image), and exhibited it, for sale, at a local gallery. Her reputation was bolstered by that show, and that piece looked like she had the intimacy of subject that I had worked hard to achieve. I’m not a hard-ass, so talked to her about it, detailing the same issues as above.

She honestly had no idea of that sort of infringement, and liked the photo, so copied it, with good skill. She didn’t even think to ask permission, which would have been easy, as we were in the same area, and she knew it was my photo, and that work was my forte. I understood her innocence on it, educated her, and asked that she should always contact a photographer before doing that again. Could have had good basis for a legal suit, but, what a sad mess that would be.
One more issue about your specific case; that site, provacatueuse.com, from what I could see, is violating copyrights willy-nilly. Most of the photos there are professional images that are lifted onto the site, without credit. Photographers would be not happy with that. It’s hard to keep track of it, perhaps impossible, with internet ability, but common courtesy requires at least crediting the photographer.

I hope this at least lets you see what is at stake for all artists. Someone could easily lift your work and use it to illustrate their webpage, without giving you credit. Respect of another’s work kept in mind is key.

[Sam_Lowry]

[QUOTE=elelle]
As a photographer, who has had this happen with my images, specifically musicians, I’ll describe it from the original artist’s perspective:

The original (gorgeous, I’ll add) portrait took some work. It’s not just a snapshot. The photographer had to gain access to the subject, schedule the shoot, work with the artist to get a great shot, then, process the image, and do all post-production work. A high-quality image like that takes time and know-how. Basically, how would you feel if you, having developed your art to a high level, have someone come and take it, and pass it off as their own work?

Photography has always suffered from the perception of, “Ah, anyone can do that, click, click…”, but I’ll attest to the fact that it is intense work to get a great image. A good photographer puts their heart and soul into their work as much as any other artist, and that should be respected. As said on this thread, there are legal strictures in order to protect artist’s rights.
[/quote]

I completely realize how much work goes into making great photographs. My brother is a photography nut, while I barely know how to use my cheap camera. When we would go on family vacations growing up, I just stopped taking pictures at all, because mine looked like crap, while his were beautifully shot pictures suitable for enlarging and framing.

I found the photo and liked it, and thought I would make a painting from it. I freely admit that it’s not a complete original that I did. I just paint for fun, and for something to do while I’m watching Law & Order reruns instead of just lounging and snacking. Most likely the painting will just be hung in my apartment, or maybe will be a gift to a friend. I was just curious legally if I could sell a painting that so obviously used someone else’s photograph.

[QUOTE=elelle]

One more issue about your specific case; that site, provacatueuse.com, from what I could see, is violating copyrights willy-nilly. Most of the photos there are professional images that are lifted onto the site, without credit. Photographers would be not happy with that. It’s hard to keep track of it, perhaps impossible, with internet ability, but common courtesy requires at least crediting the photographer.
[/QUOTE]

I also do realize that the example website is probably breaking all the applicable copyright laws. If I was going to track down the photographer, I know it wouldn’t be through that website. The fact is though if you do a google image search of any celebrity, at least half of the search results will be violating copyrights. I can see how it would be upsetting for a photographer to see copyrights so blantantly violated. But it’s not too surprising either, since as long as there are attractive celebrities and there are fan websites, there will be websites with photos put up that are violating copyrights.

[QUOTE=elelle]

I hope this at least lets you see what is at stake for all artists. Someone could easily lift your work and use it to illustrate their webpage, without giving you credit. Respect of another’s work kept in mind is key.
[/QUOTE]

I definitely realize what’s at stake for artists. I try to have respect for all artists and their work. (In fact, I know I’m not that great of an artist, and probably have more respect for most other people’s art than I do for my own.)

Thanks again for all the information everyone. I haven’t had a chance to read through all the links, but I will read through it all later. Thanks again.

[Walloon]

“Right of publicity” is another type of intellectual property, besides copyright. Cillian Murphy has a “right of publicity” under statutes in most states. There is no federal right of publicity law, though. More here.

[Sam_Lowry]

[QUOTE=Walloon]
“Right of publicity” is another type of intellectual property, besides copyright. Cillian Murphy has a “right of publicity” under statutes in most states. There is no federal right of publicity law, though. More here.
[/QUOTE]

Maybe I’m misunderstanding this, but it seems like I would be in the clear here if instead of using a photo as the basis for the painting, I was to do my own original portrait of Cillian Murphy. There would be no photographer’s rights that I would be infringing and right of publicity wouldn’t come into play, because I would be doing an original, single work of art.

When a celebrity is the subject of a work of art which is not an original single work of art, the celebrity’s publicity rights are outweighed by the artist’s right to commercially produce his art only when the work is “sufficiently transformative.”

So it seems to me that I would safely be able to sell that original painting without violating anyone’s rights. However, if I copied that painting onto posters or t-shirts and was selling those, then I would be on shaky ground.

Am I getting this right?

[Gfactor]

[QUOTE=Sam Lowry]

Am I getting this right?
[/QUOTE]

It’s going to vary among jurisdictions: http://www.ncsl.org/programs/lis/privacy/publicity04.htm

We talked about right of publicity here: Legal question about historical figures in TV/movies/video games - Factual Questions - Straight Dope Message Board

Apparently, the fifth circuit think that Texas state courts would apply the privacy-related tort of misappropration of image to right of publicity-type cases while the depicted person is alive:

In Texas, the tort of misappropriation provides protection from the unauthorized appropriation of one’s name, image or likeness. See Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir. 1987). It is best understood as a species of the right of publicity or of privacy. See id. To prevail, a plaintiff must prove that (1) the defendant misappropriated the plaintiff’s name or likeness for the value associated with it and not in an incidental manner or for a newsworthy purpose; (2) the plaintiff can be identified from the publication; and (3) the defendant derived some advantage or benefit. See Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994).

Brown v. Ames, 201 F.3d 654; 2000 U.S. App. LEXIS 1597; 53 U.S.P.Q.2D (BNA) 1676; Copy. L. Rep. (CCH) P28,018; 28 Media L. Rep. 2288 (5th Cir. 2000)

There is a statute that deals with rights in the name, voice, signature, or likelness of a dead person. http://tlo2.tlc.state.tx.us/statutes/docs/PR/content/pdf/pr.004.00.000026.00.pdf

Of course, the law that applies to any dispute would depend on several factors, so the outcome of a lawsuit based on the information we have so far is somewhat unpredictable.

[Sam_Lowry]

I thought of another question related to this. It seems that my picture is on shaky ground for me to sell legally without the photographer’s permission. But suppose I decide to give it to my friend as a gift. Then several years down the road she needs some money and sells a bunch of old stuff on Ebay, including the painting.

If the photographer decided to sue, who would he sue? Would he likely sue both of us? I realize that anyone can sue anyone for any reason they want, but I want to know if he was going to make a reasonable suit that he had a chance of winning, who would get in trouble. I realize that any answers would be speculation, but I’m still interested in what you would guess would be the answer.

[Walloon]

It would depend on the statute of limitations on copyright infringement. If the SOL had not expired, the photographer could sue both the original artist, and the person selling the artwork.

But there are a lot of easier remedies, such as “Hi. I own the copyright on the photo in that painting.”