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All About Copyright Infringement in Painting From Photographs

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Manish Jindal

February 8, 2024

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All About 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:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The impact of the use on the potential market or worth of the work is protected by copyright.

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.

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

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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.

It’s important for artists to be aware of the legal and ethical considerations involved and to take steps to ensure that they are creating original artwork that does not infringe on anyone’s rights.

How to Avoid Copyright Infringement in Painting from Photographs

There are several steps artists can take to avoid infringing on someone else’s copyright when painting from photographs.

Get Permission from the Copyright Owner

The easiest way to avoid copyright infringement is to get copyright permission from the owner of the photograph before using it as a reference for a painting.

This may involve contacting the photographer directly or using a stock photo service that provides permission for commercial use.

Create Your Own Reference Photos

Another way to avoid copyright infringement is to create your own reference photos. This may involve taking your own photographs or using reference materials that are in the public domain.

Develop Your Own Style

By developing a distinct artistic style, you can ensure that your paintings are truly original, even when inspired by photographs.

Draw inspiration from various sources, and strive to create a unique visual language that sets your work apart from others.

Use Public Domain Photos

Photos that are in the public domain can be used without permission from the copyright owner. Public domain photos are typically older photos that are no longer protected by copyright.

There are many websites that offer public domain photos for use in creative projects.

Use Transformative Use

If you do use someone else’s work as a reference, consider using it in a transformative way.

This means creating a new and original work that significantly differs from the original, and which adds something new or different to the work.

This may involve changing the composition, color scheme, or style of the work, or incorporating other elements that make it original.

Example:

Let’s say you find a photograph of a beautiful landscape on a public domain website. This digital photo features a serene lake with mountains in the background and a small cabin on the shore.

To create a transformative work, you can make the following alterations:

  • Change the composition: Rearrange the elements in the scene, such as moving the cabin to the opposite side of the lake or altering the position of the mountains.
  • Add new elements: Introduce new features to the scene, like adding a boat on the lake or a group of people having a picnic on the shore.
  • Modify existing elements: Change the colors of the landscape, add different trees and plants, or create a different atmosphere by turning the daytime scene into a sunset or night scene.
  • Combine multiple sources: Use elements from other photographs or your imagination to create a unique, composite scene. For instance, you can add a waterfall from another photograph, or include wildlife that isn’t present in the original image.

Is it Right to Sell a Painting Created from Someone Else’s Photograph?

Selling a painting created from someone else’s photograph can be a complex issue when it comes to copyright law.

Whether it’s right or not depends on various factors, including the nature of the photograph, the level of transformation in your painting, and the permissions you’ve obtained.

Here are some key considerations when determining if it’s right to sell a painting created from someone else’s photograph:

Copyright status: If the photograph is in the public domain or under a Creative Commons license that allows for derivative works and commercial use, you can generally sell your artistic painting without infringing on copyright.

However, if the photograph is copyrighted, you’ll need to consider other factors, such as fair use or obtaining permission.

Fair use: If your painting is transformative, meaning it adds new expression, meaning, or message to the original photograph, it might be considered fair use.

Fair use allows for the use of copyrighted material for specific purposes without obtaining permission. However, fair use is subjective and depends on a case-by-case analysis.

If you’re unsure whether your painting falls under fair use, consult with an attorney specialising in intellectual property law.

Obtaining permission: The best way to ensure that you have the right to sell your painting is to obtain permission from the photographer in advance.

This may involve negotiating a licensing agreement, paying a fee, or simply receiving written consent.

If you have the photographer’s permission to create and sell a derivative work, you can sell your painting without infringing on its copyright.

Moral and ethical considerations: Even if you’re legally allowed to sell a painting created from someone else’s photograph, it’s essential to consider the moral and ethical implications.

Give photo credit to the original photographer when appropriate, and respect their wishes if they object to your use of their image.

What To Do If Anyone Receives an Infringement Notice for a Painting He/She Created from a Photograph?

If you receive an infringement of copyright notice for a painting you created based on a photograph, it’s important to take the situation seriously and respond appropriately.

Here are the steps you should follow:

Review the infringement notice: Carefully read the notice and make sure you understand the allegations. Determine if the notice is legitimate and if the claimant indeed holds the copyright to the photograph in question.

Consult with an attorney: Seek legal advice from an attorney specialising in intellectual property or copyright law. They can help you understand your rights and obligations, and advise you on the best course of action.

Gather evidence: Collect documentation that supports your position, such as records of your artistic process, proof of permission from the photographer (if applicable), or evidence that the photograph is in the public domain. This information can be helpful in demonstrating that your work is transformative or falls under fair use.

Consider your options: Based on your attorney’s advice, decide on the best course of action. Options may include:

  • Negotiating a settlement: In some cases, it may be in your best interest to negotiate a settlement with the claimant. This could involve agreeing to pay a fee, providing attribution to the photographer, or removing the painting from public display.
  • Challenging the claim: If you believe that your painting is transformative or qualifies for fair use, you may choose to challenge the infringement claim. Your attorney can help you build a strong case and guide you through the legal process.
  • Cease and desist: If you acknowledge that you have infringed on the photographer’s copyright, you can choose to comply with the notice by ceasing any infringing activities, such as removing the painting from public display or ceasing sales of prints.

Learn from the experience: Regardless of the outcome, use this experience as an opportunity to learn more about copyright law and how to avoid future infringement claims. Make sure you obtain permission when necessary, use public domain or licensed images, and create transformative works when using photographs as a reference.

In conclusion, receiving an infringement notice for a painting based on a photograph can be a stressful experience, but it’s important to respond calmly and seek professional advice.

By understanding your rights and obligations, gathering evidence, and considering your options, you can navigate this situation effectively and protect your artistic interests.

What are the Appropriate Steps to Take if Someone Creates a Painting Using My Photograph as a Reference?

If someone makes an illustration or painting based on your photograph without your permission, there are a few things you can do:

Contact the artist: The first step is to contact the artist who made the illustration or painting and explain that you are the owner of the photograph and that they have used it without your permission.

Ask them to stop using your photograph and remove any images or artwork that includes your photograph from their website or social media accounts.

Send a cease and desist letter: If the artist is unresponsive or refuses to remove the artwork, you may need to send a cease and desist letter. This is a formal letter that demands that the artist stop using your photograph and any artwork based on it.

A cease and desist letter can often be enough to resolve the issue without the need for legal action.

Consider legal action: If the artist continues to use your photograph or artwork based on it after you have sent a cease and desist letter, you may need to consider legal action.

This could include filing a lawsuit for the infringement of the photographer’s exclusive rights or seeking an injunction to prevent the artist from using your photograph or artwork in the future.

It’s important to act quickly if you discover that someone has used your photograph without your permission, as the longer you wait, the more difficult it may be to stop them from using it.

If you have any concerns about the use of your photographs or artwork, it’s always a good idea to consult with a qualified attorney who can advise you on your legal rights and options.

Conclusion

In conclusion, copyright infringement is a serious issue when it comes to painting from photographs.

Artists who use copyrighted photographs without permission risk legal action and damage to their reputation.

However, there are steps that artists can take to avoid infringing on someone else’s copyright, such as getting permission from the actual owner or using public-domain photos.

Respecting copyright laws is important not only to avoid legal consequences but also to protect the broad rights of the copyright holder.

As artists, we have a responsibility to create original works that are based on our own ideas and experiences.

FAQs

Can I use a photograph as a reference for my painting without permission?

Yes, if the photograph is in the public domain or if your use of the photograph falls under fair use.

What is fair use in painting from pictures?

Fair use is a legal doctrine that allows people to use copyrighted works without the original owner’s permission under certain circumstances.

The factors that determine fair use are the purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, and the effect of the use upon the potential market for the copyrighted work.

How do I know if a photograph is in the public domain?

A photograph is in the public domain if it is no longer protected by copyright.

This typically occurs when the copyright term has expired or if the photograph was created by the U.S. government.

What should I do if I suspect someone has infringed on my copyright?

If you suspect someone has infringed on your intellectual property rights, you should consult with an attorney about copyright infringement to determine the best course of action.

Can I be sued for copyright infringement if I unintentionally paint a copyrighted photograph?

Yes, you can be sued for the breach of copyright even if you did not intend to infringe on someone else’s copyright. It is important to take steps to avoid copyright infringement when painting from a picture.

Is painting a picture copyright infringement?

Painting a picture can potentially be copyright infringement if it reproduces a copyrighted work without permission.

However, original paintings are typically protected by the artist’s copyright.

Determining infringement depends on factors such as fair use, transformative nature, and the level of similarity to the original work.

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