photo use/copy right law and fair-use (when cited)

i have done a lot of checking in on this topic (being an artist and all) but haven’t really found an answer

i understand derivative work is a no-no as far as the copy rights go. but what if you credit the source?

for example, i found a really cool, circa late 50s black and white photo that i believe came out of Time magazine.

if i wanted to do a painting of said photo, and attribute it to the original source when the painting is displayed–does that break copy right or does it just cite and re-use the original?

it doesn’t fall under parody–but it also never attempts to claim the idea as their own.

examples would include the fairly common practice of artists copying other paintings, for the practice of learning style or technique, but always titled the work as to include the source (ie "after [whoever the original was done by]).
i recently saw a very cool painting that incorporated a unicorn from a fairly modern painting. the artist of the new piece titled it “unicorn (after johfra bosschart).” is that legal…or does that infringe on copy rights?

i am talking about just doing the work unilaterally, without first seeking permission, so long as you credit the source.

i have familiarized myself with some cases (2liveCrew/Koons) but i’ve not found a case where the use was both unauthorized and the source was cited. (the OBEY ‘obama/ap’ dust up is another good case, but they settled before anyone ruled on it. i also found another case where a kid was stripped of their contest winnings when it turned out the image was culled from a flickr account – all because the photographer through a shit-fit).

in art school, it was common practice for the professor to bring heaps of magazines and have us all pick out something to draw or paint from them. the only conversation we ever had about copy right and fair use involved the prof citing a case where a local artist used a pic from the newspaper for a painting. i guess it was in a contest or some other means of being “high profile,” and the photographer caught wind and sued the artist. but the artist won, as the judge declared the work transformative enough by simple virtue of being created by paint.
i believe the professor said work must only be altered by some paltry percentage before being considered “new and unique” (i believe it was either 10 or 30%–but the point is it wasn’t 51 or 90 percent–certainly not by the majority of alteration).

another thing i consider is MLA cite and other things of that nature. painting a photo and crediting the photographer seems very much the same as writing a paper and citing sources.

Copyright is a complicated thing. For the most part, unless there is some provision in the law (such as fair use, which doesn’t mean what a lot of people think it does), citing isn’t enough–there has to be permission given and/or a royalty payment. With music you can get a mechanical license, which requires both credit and payment of a statutory royalty. I don’t think there is any such provision for photography. In fact, here’s an editorial on the subject of licensing photographs. It mentions a case similar to what you’re describing.

IANAL

Are you doing a faithful pixel-by-pixel copy? Or are you taking the pose, facial expression, “look”, etc.? The usual "fair use’ looks at the famous 4 factors:

One issue will be the “transformative nature” - if you colourize your product, if you fix a lot of the background detail that photogrpahy can’t erase, exaggerate the pose or expression, etc.

Another issue would be how you affect the market for the original - if it’s some obscure forgotten news photo, not likely; if you reworked “The Kiss” (France or Times Square) or Lee Harvey Oswald being shot, maybe someone could complain you are simply piggybacking on their fame and cheapening the still valid resale market. If you grossly overmarketed your image rather than just using it as a demonstration of artistic skill, that might affect #1 and #4.

OTOH, how many different depictions of Marilyn Monroe holding her skirt down, have you seen? That must be a real minefield - it’s news and history, it’s the studio’s movie, and it’s her personal image which someone must be the estate holder to… But in that case, the person was a public figure (different guidelines).

Also -interestingly enough - I read that during a break in the shoot, they invited the press in and she posed for that picture as a subway went by. So it’s set up by the studio, IIRC there is such a scene in the movie, but the photo could be one of several and not actually taken from the movie, rights for similar photos owned by several different photographers or news organizations.
See http://en.wikipedia.org/wiki/Fair_use

Also http://librarycopyright.net/forum/view/1613

here’s a good example.
thisis a photo i poached from an amateur photographer off facebook.
thisis the painting i created from the photo.

i know that transformativeness is a very nebulous thing, but i can see both a case that it’s too much of a replica as well as being a totally new work of art. i’m basically stumped. i realize that a lot of factors come into play–the most important being the original photographer filing a lawsuit (most cases of anything similar to the above artwork amount to little more than internet butthurt as most people do not have the means to pursue lawsuits). i have seen it go both ways; the artist won’t back down and demands it go to court (but it never goes that far), or the artist becomes scared and desists at the first sign of conflict.

not long ago, i saw a case where the mere threat of lawsuit was enough to make a band change their album art (it was an 8-bit pixelated painting of a well known photo).

i wish the AP/Fairey “HOPE” poster case went to court and set some benchmark ruling. it’s a great example of what i think should constitute fair use and highly transformative work. but we’ll never know the legality since it was settled.

in the above art i posted–i asked for permission from both the model and the photographer before proceeded, even if no one will ever see my work. just on principle, i’d rather do things right. but in theory, it seems to me i could have poached the image and credited the photographer without asking and still have been ok, but that’s the question.

here is another example:
thisis album art created for a Throne/Sedan split. the artist is selling prints, but emphasizes the painting is based on previous source art by Johfra Bosschart.

is that copy right infringement? or homage+embellishment?

as i mentioned, it has been for years common to copy paintings but assigning the “after original painting by…” as a cite in the title. i’ve never seen any law or copy right case that mentioned this practice, which again, is highly common. the closest i found were scholastic art contest bylaws that say you must cite rights of attribution to the original artist your work is after or else your work will be disqualified from contest. that seems to me to indicate a leaning that you can copy so long as you cite your source. but that is, by no means a legal statute.

a few notes: apparently, so long as it is for academic “learning” or exploration reasons, doing studies of pre-existing artwork falls under fair use. i am not sure what becomes of the legal status once the art is shown in a gallery, sold or otherwise disseminated, but that is what i understand so much about copy/studies.

i believe my question falls under the term appropriation, and looking over the case-studies, it is utterly unclear what constitutes what, legally. so many cases end in settlement that no precedent exists in any valuable amount.
(side note: KOONS cannot keep out of legal trouble with this crap, can he?!)

i also found this,

what constitutes “reasonably limited” use seems like another “transformative” definition–a nebulous term, one no one will know for sure until they are sued and the courts settle it. it’s not quantifiable and seems like nothing more than debate until a judge settles it.

for the record, the image that got me thinking about this was a vintage black and white photo of a scientist examining a shark on a table. he is peering into it’s nasal cavity w one of those ear/nose/throat doctor scope things. the lower corner has a “LIFE” magazine watermark. i cannot find the image online at this point, tho i have my copy. reverse image search yielded nothing. i would like to paint it pretty much as it is. while i could replicate the scene, i don’t really have some desire to paint doctor-types examining sharks, per se. there is something about the quality of the image, that captured moment, that i think would translate very nicely into a painting.

my thought is that i could paint it under fair use so long as i cite it as a LIFE magazine source photo. whatever purpose that image served (ie to sell that particular issue of LIFE, promote whatever story it accompanied) has long since dissolve from any viable “market,” so i am not inhibiting their “market share” w derivative work. i would maintain it would be considered “reasonable limited use” as i 1. do not claim it as my original composition/idea and 2. do not show my work on a large scale, to a large audience or even in shows outside my state. maybe i’m wrong, but that’s my logic. i’m more concerned about the actual legal principle and want it to dictate the moral principle, as the seemingly obvious moral answer would be “don’t use it unless explicit permission is granted.”

And don’t forget that using the image of the model is a different subject entirely from “poaching the image” from the photographer. A person has the right to control the marketing of their own image or in some cases (Waits v. Frito-Lay) their voice.

So if you don’t have a release from the shark scientist or his estate (yes, the rights can extend beyond death) that’s another area where you should be concerned.

here’s a few more case examples for appropriated art…both times, the artist lost.

http://www.studio360.org/2012/apr/06/appropriating-images-for-art-when-is-it-okay/

but in both cases, the artist didn’t attribute or cite the original, and in both cases used either someone else’s FINE ART or a very popular and high-profile image.

to be clear, in the Prince case, he seems to have taken a photo of the original fine-art photo and painted over it in a few sections (the eyes and guitar). that, uh…clearly is just copying someone’s art…and without attribution, yeah–total infringement. hardcore.

the second case involving the Run DMC photo is more akin to what i am thinking about, but once again he didn’t attribute the original source and stilted his argument by staying it was ubiquitous, uninteresting and “didn’t deserve an original copyright.”

would it/could it have gone a different way had he gladly and appropriately attributed the source material?

Whether you appropriately credit the author of the work you’re copying is not one of the four factors US courts are supposed to consider in determining fair use. So I don’t think it matters much for purposes of copyright. Though perhaps it would have some minor effect on the market for the original work (one of the four factors), in some cases. (IANAL)

Attribution matters for purposes of plagiarism, but that’s a separate issue.

You should ask these questions of a lawyer. I’m not a Copyrights lawyer, and I’m not your lawyer, so I won’t address the merits of the issue directly. But it seems to me you’ve got a lot of misapprehensions about how copyright law works. One important point – citation is largely irrelevant in determining infringement. Artists cite earlier artists because it’s custom, because it’s the right thing to do, and because they don’t want to be accused of swiping (and maybe because of trademark where that rears its head), not because of a copyright issue.

The Berne Convention language you cite is inapposite – they’re using “quoting” in the plain English sense of quoting text in a review. You appear to be reading it as the term of art in the visual arts, and I don’t see any evidence that this is the proper reading.

If you’re attached to a school (or even if you’re not), they might have someone on staff who can answer these questions, or at least help you understand the environment. You might also take a look at www.copyright.gov, which has some useful information on what counts and what doesn’t. A quick review of The Copyright Act, specifically Secs. 106 and 107, might also be useful.

–Cliffy

actually, the berne convention quote i cited was copy and pasted from http://www.visualartcopyright.com/.

it was *specifically *pertaining to visual arts. (see their terminology section). speaking of terminology, “plagiarism” doesn’t pertain only to “writing.” plagiarism can pertain to any misappropriation, especially including visual (see: wikipedia, particularly LHOOQ.)

on a similar note, i contacted someone on that visual arts copyright law site and got a very thorough answer. it would appear appropriation *with *attribution doesn’t per se protect you from infringing on the copyrights nor from lawsuit. citing the cases above, as well as a few others, it seems it is becoming more and more common for appropriation artists to be sued, with massive contention on the outcomes. there are very polarized views on what is morally and ethically ok (some argue even Prince’s 90% plagiarized piece is a wholly new work based on the message and spirit of the art).

so the basic answer is unless you want to afford the risk, don’t appropriate images without consent. it’s by far not a cut and dry ‘yes or no’ sort of thing, but i think i will either ask for permission or never sell the work if i insist on doing it but cannot procure authorization (and don’t believe it is transformative enough).

it occurs to me upon re-reading that i might have misinterpreted the sentence “plagiarism is a separate issue,” me inferring that it only pertains to writing (i seem to have mixed the last two post’s messages together, about the distinction on the berne language).

but still, looking over it, i think i maybe don’t get the distinction. while plagiarizing isn’t in and of itself against the law, i cannot find a case where copyrights were broken WITHOUT the new work also being plagiarized. that is to say, i haven’t once found any case where an artist was sued for copyright infringement who didn’t also plagiarize the incorporated work. i cannot find a case where someone openly cited the source and said “i was building off their idea” or “i used it for inspiration.”

so that was the nature of the question, which i guess is complicated since there appears to be no precedent in this exact scenario.

as i still understand it, a portion of copyright protection is to insure your work cannot be plagiarized. which, as i understand almost all the cases i’ve seen, is the major issue–the new-artist is claiming the old-artist’s work in whole or portion as their own idea/composition.

i think i got a handle on it now, but just wanted to be clear.

IANAL etc.

One issue is “transformative”. Taking a photo and turning it into a sculpture is not much different than translating a book. I would assume both would be de facto copying and not much more. In the case of the Obama Hope or the Warhol Marilyn pics, I can see a significant alteration from the original. I guess the question you ask yourself as an artist is “why would this be better than just copying and printing the original photo”? What are you hoping to accomplish? Quote as in a few lines from a book is very different than quote as in the essence of a single image.

In the puppy case (and possibly the Rastafarian photos case) one could imagine the actual effect on market would be negative. “Oh, you just copied the puppy sculpture” or “looks like it’s waiting to be obscured by purple paint - where’s the guitar?”

art is weird, and variable, and is often about the process and not the end result. it cut both ways; sometimes there’s little in the crafting process but the idea and sentiment is HUGE (yoko putting an apple on a table–it “means” something. i call bullshit, but i digress). sometimes the crafting process is huge and tedious and requires unfathomable skill, but the “point” of the end-result is moot or meaningless.

more on all thisin a second, but first…

the Koons “string of puppies” case, to be clear, was him taking a photo and translating it into a sculpture (precisely what your second line talks about). it wasn’t a copy of another sculpture. he found a postcard with a chintzy photo of a couple holding a string of puppies. he took the photo to craftsman in (asia, i believe CHINA) and told them to painstakingly copy it verbatim. the biggest reason he lost the case was because it was on report how rigorously he wanted the photo copied, without artistic interpretation or embellishment. and, in that case, you exactly nailed it: it was found there was little/no transformativeness.

but, like i said–art is weird–and the point is sometimes convoluted in a genuine and honest way.

take photorealism.

it requires a few key aspects: 1. INSANE skill 2.a source photo (never freehanded) and 3. tedious replication of a photo without interpretation.

even amongst artists, there is a lot of contention as to why bother doing this.
photorealism is both the most complex and skillfully technical art that can be created–and the most pointless.

now, here’s why art gets weird–
i’ve been to photoreal shows and even dabbled in it a bit (hint: i’m not that good).
but i can assure you, there’s massive value in it. for one, when you see it in person, in a gallery, it is ASTOUNDINGLY powerful to behold. i cannot emphasize enough the physical power a painting has over a photograph. paintings have their own force of life. so when something is so well done it looks like a photo, but is still living paint, you feel that (again, it doesn’t come across in photos. only in life).

the process itself is the point for these artists. it’s not the end-result as in most cases of art.
it’s extremely masturbatory. so, yeah. it’s silly–when you’re done, you have a 1:1 replica of a 2 dimensional image that already existed in a similar form. but it’s more about the journey and the technical prowess.

i know a phenomenal photorealist who paints candy wrappers and things of that nature. he paints the most astonishingly realistic paintings of…KitKats and gumdrops. we had a discussion one day about “why.” and he really had no answer. it’s just wankery. it ended with him phumphering and blathering that i “just didn’t get it.” i do get it. it’s just a case of doing it for just because. because it’s crazy hard.