If the images are so generic public object that anyone could take them then there might not be much of an issue
I knew of a crooked ad agency that would work and work to find an artist to do a painting from a photo, telling the painter to “change it enough that no one will notice the similarity”. Well, a lawyer schooled them quite forcefully on the cost of that and they quickly decided to find the original photographer and pay him a couple thousand.
But if I were emailed by you or your son, I’d be willing to grant limited rights for free.
ETA: Fun Fact; I was one of the illustrators that they tried to hire. They’d already exhausted every freelancer in town, and ended up with a low-life from Jersey…
There is plenty of free imaginary out on the web released under a Creative Commons license, I would suggest Upsplash.com as a good place to start, alternatively you can buy royalty free photos from shutterstock quite cheaply.
Warning: A Creative Commons license is a license. Read the terms of the license.
digs, thank you for your input.
My biggest worry right now is how the hell am I supposed to figure out where decades of photos originally came from. We still have much of the source material, but not nearly all of it.
The whole point of this endeavor is to secure our son’s future. It is turning out to be harder than I had thought.
Then why would the photographer or his company settle when they could have won outright? Lying about the source of the image does not change the details of the copyright question which is essentially the same as the OP’s - accepting the photographic source (which the artist was trying to hide) was this transformative enough?
I don’t know if this makes anything clearer or not, but Anson (that’s his name by the way) is not a photo-realistic painter. He is a natural born impressionist. His very early work looked quite paint-by-numbers, but he has definitely found his own style and it is thoroughly his.
Here’s a cite where famous artist Jeff Koons got sued for using a photograph, and the photographer won. Not for the first time in Koons’s career.
However: The lawsuit awarded the photographer $170,000 plus some extras in damages. Koon sold the art work itself (a sculpture) for like $4 million. So in the grand scheme of things I would say in this case and another one cited (“String of Puppies”) the artist actually won.
Moral: The amount of damages that can be collected for infringement is finite. The amount the art can be sold for is not.
Well, so don’t bother about selling paintings derived from photos of unknown origin, at least for a moment.
How quickly can your son create new paintings? Does he have a specific size he has to stick to? (If not, smaller is faster.) Unless he’s gonna be supporting himself tomorrow, you might be better off starting by securing a few new photos where copyright won’t be a problem, per the numerous excellent suggestions above.
As a bonus, you could curate the photos on his behalf, so you have easy categories of popular subjects. Bunch of trains and boats, for example, lend themselves to a cohesive calendar. This may be a much easier sell down the line than “Random shit painted by an autistic dude” merchandise of assorted items and scenes.
Oh, yeah: if he’s willing to do a few kittens, or maybe some of the most popular dog breeds, he should be all set! People will ogle t-shirts and whatnot just because, “Oooh! My Fifi on a coffee mug!” and that’s a broad market that’s easy to reach. Then they see the backstory of who painted Fifi and - boom - sale.
You could put word out, among friends or even more broadly on social media, that you’re looking for photos he can use. Write up a simple contract. Betcha people fall over themselves to send you material. Heck, I’d be flattered to have one of my photos memorialized in such a way!
Note that, given the situation, the photographer may grant permission for no more than a nominal fee, or none at all, especially if you ask before selling anything.
In civil cases, most plaintiffs and their counsel prefer to settle, even if they are confident that they would have eventually won. Litigation is costly. And in a case like this, a quick settlement may be worth a lot more than trying to collect from a defendant who fought to the end.
Well there goes my turn in the spotlight… (I work as a copywriter) :smack:
By the way, the judge in the Shepherd Fairey “Hope” poster case strongly suggested that he should settle because he was going to lose.
I have much more sympathy for someone like the OP’s son, who is using the image as a reference but is using his own eyes and hands to create something. Taking an image and digitally manipulating it is straight ripping off. I’d have much more respect for Fairey if he had picked up a pen or a brush and had made that image with his own hand. The fact that there was a digital trail in existence at all should, in my view, count as a strike against any claim of fair use.
Jeff Koons is a professional thief and con man. He has the money to fight lawsuits and uses them for publicity. People like Koons and Richard Prince are predators whose prey is fellow artists—cannibals of the art world, I’d call them.
Hah! My gf works in advertising. She introduced me to a coworker at a party and told me she was a copywriter. I then asked the woman a thought provoking legal question and halfway through my question she said, “no, I literally write copy”.
Do I understand this properly? Are you saying that altering an image digitally to create a derivative work is inherently not fair use, while the same end result achieved by analog means somehow represents a more valid fair-use claim?
This is my personal opinion. It’s not a legal standard. But yes I believe that digital or mechanical copying of images or sounds should be treated as inherently less fair than copying by hand. Anything that relies on a human’s physical, mental, and perceptive abilities inherently introduces an element of interpretation and transformation. I don’t draw it as an absolute line, but it should weigh on the scale.
The counter to this is, of course, “digital” and “artistic” are not mutually exclusive. Sometimes the brush and palette are software, but there’s still human artistic judgment and transformation.
As most things in copyright, hard-and-fast rules are often neither.
I see. Thanks for answering. But of course, we’re not talking about copies—we’re talking about derivative works, which, by definition, aren’t copies. Rather, they are original works of authorship that incorporate major elements of previous works by other authors.
Direct copies infringe no matter whether they were copied by digital means (e.g., with a digital camera) or analog ones (e.g., a film camera). You’re saying that derivative works are somehow less protectable (or should be) when generated with a scanner and Adobe Illustrator than they are when generated by a film camera and, say, oil paints.
Why do you think that an artist using Adobe Illustrator isn’t creating a derivative work? Who cares whether the methods were analog or digital? More to the point, why do you think a derivative work created via Illustrator relies any less on the artist’s physical, mental and perceptive abilities than the same work via your preferred methods?
By your logic, wouldn’t a photorealistic-but-hand-painted copy of a photo be more protectable than a digital derivative work with original editorial content? We agree that this whim of yours is unsupported by the law, so of course an exact hand-generated copy is less protectable than a true derivative work. So why the bias against digital media?
ETA: Ninja’d by the post above!
Those digital and mechanical means necessitate copying. Notice I used the word “copying.”
Oh, agreed on Koons. But it was legal precedent and the artist lost and photographer won, so om point for this thread.