# Copyright question **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 12, 2020, 10:30pm UTC](https://boards.straightdope.com/t/copyright-question/849371 "2020-03-12T22:30:52Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 12, 2020, 10:30pm UTC](https://boards.straightdope.com/t/copyright-question/849371/1 "2020-03-12T22:30:52Z")
Our son is a brilliant artist. He also occasionally\* suffers from profound autism. He doesn’t paint from life or his imagination, but only from photos. Most of these photos are certainly copyrighted. If we decide to sell any of his work or prints of them or, say, make a calendar out of them, do we owe the original photographer a share? Thanks for your advice in advance. \*He mostly seems to enjoy being himself immensely ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 12, 2020, 10:35pm UTC](https://boards.straightdope.com/t/copyright-question/849371/2 "2020-03-12T22:35:26Z")
I’m pretty sure that autocorrect is responsible for the misspelling in the title. Yeah, that’s the ticket. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 12, 2020, 11:04pm UTC](https://boards.straightdope.com/t/copyright-question/849371/3 "2020-03-12T23:04:17Z")
It would most likely be under the category of derivative work, so the original photographer would hold copyright. You can contact them and ask permission. They might be willing to grant it with minimum or no payment (or a royalty). ---
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [March 12, 2020, 11:38pm UTC](https://boards.straightdope.com/t/copyright-question/849371/4 "2020-03-12T23:38:59Z")
Alternatively, you could find him some photo’s that are not protected. ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [March 12, 2020, 11:43pm UTC](https://boards.straightdope.com/t/copyright-question/849371/5 "2020-03-12T23:43:37Z")
Yup, that’d be a derivative work. Without the new painting being strongly transformative, your son can’t sell them at all without prior permission. Do you think he might also enjoy photography? That way, he could take his own pictures and paint them later. ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 12:01am UTC](https://boards.straightdope.com/t/copyright-question/849371/6 "2020-03-13T00:01:18Z")
He does enjoy photography, but his photos are of things that are pretty much only interesting to him. His best work comes from images from books of photos and decorative calendars. Not that his self-inspired works are bad, just less inspiring to neuro-typicals. I love them, but most others are underwhelmed. Whereas his “derivative “ works are highly praised by all who have seen them. ---
**Author:** ![Elmer\_J.Fudd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmer_j.fudd/32/1211_2.png) [@Elmer\_J.Fudd](https://boards.straightdope.com/u/Elmer_J.Fudd)\ **Post date:** [March 13, 2020, 12:06am UTC](https://boards.straightdope.com/t/copyright-question/849371/7 "2020-03-13T00:06:44Z")
There’s nothing wrong with derivative art; just don’t sell it. ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 12:07am UTC](https://boards.straightdope.com/t/copyright-question/849371/8 "2020-03-13T00:07:58Z")
I guess if we move forward with this idea we are going to have to do a lot of research and contact a lot of photographers. Or we could wait and see if they can be bothered to sue a disabled person. ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [March 13, 2020, 12:13am UTC](https://boards.straightdope.com/t/copyright-question/849371/9 "2020-03-13T00:13:37Z")
> [@Rich\_Mann](#): > > Or we could wait and see if they can be bothered to sue a disabled person. For $150,000 plus court costs, they will be. That’s the maximum penalty for willful infringement. ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 12:22am UTC](https://boards.straightdope.com/t/copyright-question/849371/10 "2020-03-13T00:22:38Z")
> [@GreysonCarlisle](#): > > For $150,000 plus court costs, they will be. That’s the maximum penalty for willful infringement. Whoa. That’s a little scary. Maybe we should try the first option. 😳 ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 13, 2020, 1:41am UTC](https://boards.straightdope.com/t/copyright-question/849371/11 "2020-03-13T01:41:55Z")
Yes, the key word is “transformative”. If it’s changed enough to appear an original artwork, it’s copyrightable itself. OTOH, even the Obama HOPE poster has a disputable past and it’s pretty “transformed”. (“…they settled out of court…” which probably meant neither photographer nor painter was confident of a win) > **[Barack Obama "Hope" poster](https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster)** > > The Barack Obama "Hope" poster is an image of US president Barack Obama designed by American artist Shepard Fairey. The image was widely described as iconic and came to represent Obama's 2008 presidential campaign. It is a stylized stencil portrait of Obama in solid red, beige and (light and dark) blue, with the word "progress", "hope", or "change" below (and other words in some versions). > Fairey based the design on a photo taken by former Associated Press (AP) freelance photographer Mannie... He’d have to be doing works pretty abstract or altered, which I’m assuming is not the case. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 13, 2020, 1:43am UTC](https://boards.straightdope.com/t/copyright-question/849371/12 "2020-03-13T01:43:16Z")
(1) You are asking the wrong question. It’s not whether you owe the photographer a share. It’s whether you need permission (a.k.a., a license) from the photographer. (2) Short answer: A painting from a photograph is likely a derivative work of the photograph. A copyright owner holds the exclusive right to make derivative works. Thus, permission must be obtained. (3) Students often use other people’s works as references to learn how to paint. This is likely fine, so long as the work is used only for educational purposes. More detailed answers— > **[What do I do if someone makes an illustration or painting based on my...](https://www.thelawtog.com/blogs/news/what-do-i-do-if-someone-makes-an-illustration-or-painting-based-on-my-photograph?_pos=1&_sid=b2e3bb784&_ss=r)** > > As we know, only a copyright holder has the exclusive rights to a creative work, and only they can grant a person a license to use their image or work. > So what if you believe someone has imitated or copied one of your photographic images? > The short... > [@](#): > > The short answer: If an artist makes an illustration or painting or any other work of art based on a photograph they may or may not be violating copyright law. > > For example: if they base their painting on an oft photographed or painted location, generic subject matter, or an image that has been taken by numerous photographers they would likely not be violating copyright law. > > However: if they create their painting, illustration or other work of art from a specific photograph or if your photography is known for a particular unique style, and their images are readily identifiable with you as the photographer, and an artist copies one of your photographic compositions or incorporates your photographic style into their painting or illustration they may be liable for copyright infringement. > **[Can You Legally Make a Painting of a Photograph?](https://www.thesprucecrafts.com/may-i-make-a-painting-of-a-photograph-2573673)** > > Find out whether it's okay to make a painting from someone else's photograph, or not, in this artist's copyright FAQ. > [@](#): > > A painting made from a photograph is known as a derivative work. But that doesn’t mean you can simply make a painting from any photo you find — you need to check the copyright situation of the photo. Don’t assume because the likes of Warhol used contemporary photos that it means it’s okay if you do. > > Who Holds the Copyright? > The creator of the photograph, i.e. the photographer, usually holds the copyright to the photo and unless they’ve expressly given permission for its use, making a painting based on a photo would infringe the photographer’s copyright. In terms of US copyright law: “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.” You may be able to obtain permission to use a photo for a derivative work from the photographer, or if you’re using a photo library, buy the right to use it. > > You might argue that the photographer is unlikely ever to find out if you use it, but are you going to keep a record of such paintings to ensure you never put it on display or offer it for sale? Even if you’re not going to make commercial use of a photo, just by creating a painting to hang in your home, you’re still technically infringing copyright, and you need to be aware of the fact. (Ignorance is not bliss.) [http://www.newton.k12.in.us/art/dd/images/copyrightfaq.htm](http://www.newton.k12.in.us/art/dd/images/copyrightfaq.htm) > [@](#): > > Q: Can I use someone else’s photograph as reference material for a painting I’m creating? > If you’re copying a photograph, you must get the photographer’s permission. Photographs are protected by copyright laws just as illustrations are. Even though it’s in a different medium, you’re violating the photographer’s copyright if you copy a photograph in your painting. If a photographer grants permission to use one of his photos as a reference, he may also require that you credit him when your painting is completed. However, if it’s not in your agreement, you aren’t under legal obligation to do this. > > Q: Can I draw a sculpture I recently saw in a gallery and use it as an illustration subject? > You can’t draw the sculpture without contacting the artist and getting written permission. A sculpture, like a photograph, is a copyrighted piece of art. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 13, 2020, 1:45am UTC](https://boards.straightdope.com/t/copyright-question/849371/13 "2020-03-13T01:45:56Z")
> [@md2000](#): > > Yes, the key word is “transformative”. If it’s changed enough to appear an original artwork, it’s copyrightable itself. > > OTOH, even the Obama HOPE poster has a disputable past and it’s pretty “transformed”. (“…they settled out of court…” which probably meant neither photographer nor painter was confident of a win) > [Barack Obama "Hope" poster - Wikipedia](https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster) > > He’d have to be doing works pretty abstract or altered, which I’m assuming is not the case. It was settled out of court mostly because the maker of the poster falsified evidence and was headed for a big loss. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 13, 2020, 2:46am UTC](https://boards.straightdope.com/t/copyright-question/849371/14 "2020-03-13T02:46:11Z")
> [@Rich\_Mann](#): > > I guess if we move forward with this idea we are going to have to do a lot of research and contact a lot of photographers. > > Or we could wait and see if they can be bothered to sue a disabled person. You might also stick to photographs published before 1924. Any claim of copyright protection in them would have expired. ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 3:04am UTC](https://boards.straightdope.com/t/copyright-question/849371/15 "2020-03-13T03:04:53Z")
Wow, Ascenray, that’s a lot of information. Thanks! Now I’m starting to worry that the fifty or so works of his we have hanging on every wall in our house might be a hanging offense. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 13, 2020, 3:14am UTC](https://boards.straightdope.com/t/copyright-question/849371/16 "2020-03-13T03:14:48Z")
> [@Rich\_Mann](#): > > Wow, Ascenray, that’s a lot of information. Thanks! > > Now I’m starting to worry that the fifty or so works of his we have hanging on every wall in our house might be a hanging offense. I know you’re joking, but overstating the matter isn’t helpful. So long as you keep them in your house and only your family, friends, and other close associates see them, there’s little to worry about. But don’t display them publicly or sell them. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [March 13, 2020, 3:23am UTC](https://boards.straightdope.com/t/copyright-question/849371/17 "2020-03-13T03:23:17Z")
Is the success of your son’s paintings based primarily on the talent of the original photographer, or your son’s original interpretation of them? If the latter, this passage, from **Acsenray** ’s cite above, could be a key to avoiding problems: > [@](#): > > For example: if they base their painting on an oft photographed or painted location, generic subject matter, or an image that has been taken by numerous photographers they would likely not be violating copyright law. Can your son work from photos in this manner? For instance, if you got him several shots of the Eiffel Tower from the same angle, and he used them to make a picture of the Tower that wasn’t a slavish copy of any one photographer’s image, there would be no likely copyright infringement. But if his pictures owe most of their perceived quality to the unique vision of the photographer that he has simply copied, then you might try contacting the photographers, explaining the situation, and asking permission to make paintings based on them. Some, if not all, may be sympathetic and agree. ---
**Author:** ![RioRico](https://avatars.discourse-cdn.com/v4/letter/r/f04885/32.png) [@RioRico](https://boards.straightdope.com/u/RioRico)\ **Post date:** [March 13, 2020, 3:31am UTC](https://boards.straightdope.com/t/copyright-question/849371/18 "2020-03-13T03:31:49Z")
> [@Rich\_Mann](#): > > He does enjoy photography, but his photos are of things that are pretty much only interesting to him. His best work comes from images from books of photos and decorative calendars. What subjects does he prefer? Portraits, nudes, land-sea-sky-city scapes, funny animals, natural or human landmarks, machines, performance, sports, what? Can he be inspired by un-copyrighted images? Could you print booklets of online public domain images? ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 3:52am UTC](https://boards.straightdope.com/t/copyright-question/849371/19 "2020-03-13T03:52:31Z")
I would honestly love it if any suggestions I could make would have any influence on his choices, but that ship sailed away decades ago. He is his own man (boy in his mind) and some things are not negotiable. Not that it’s anyone’s business, but he has insisted that he is 19 for the last 16 years and I will kick your ass if you argue with him about that. He gets very upset when anyone calls him a man. He knows that he is different and prefers to think that it is his age and not his ability. You gotta love that! ---
**Author:** ![Rich\_Mann](https://avatars.discourse-cdn.com/v4/letter/r/ce73a5/32.png) [@Rich\_Mann](https://boards.straightdope.com/u/Rich_Mann)\ **Post date:** [March 13, 2020, 4:24am UTC](https://boards.straightdope.com/t/copyright-question/849371/20 "2020-03-13T04:24:14Z")
> [@RioRico](#): > > What subjects does he prefer? Portraits, nudes, land-sea-sky-city scapes, funny animals, natural or human landmarks, machines, performance, sports, what? Can he be inspired by un-copyrighted images? Could you print booklets of online public domain images? He is most fond of landscapes. The more indistinguishable the better. He occasionally paints something more recognizable, like his own photo of the cranes at the port of Oakland, which is hanging in my mancave right in front of me as I write, but he definitely prefers rather nondescript images. [Next page](https://boards.straightdope.com/t/copyright-question/849371.md?page=2)