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Is Drawing from a Photo Copyright Infringement?

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Manish Jindal

February 8, 2024

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Is Drawing from a Photo Copyright Infringement?

“Is Drawing from a Photo Copyright Infringement?”

This is a question that many artists may ask themselves when considering using someone else’s photograph as a reference for their piece of artwork.

While it may seem innocent enough to draw from a photo you found online or took yourself, the legal and ethical implications of doing so are complex and worth exploring.

This article examines whether drawing from a photo without permission constitutes copyright infringement.

What is Copyright?

Copyright is a legal right that grants the creator of an original work exclusive rights to its use and distribution. This includes literary, musical, dramatic, artistic, and certain other intellectual works.

It is a form of protection provided by copyright law that automatically exists from the moment the work is created, and it generally lasts for the life of the author plus 70 years.

Copyright in Photography

Photographs are considered artistic works under copyright law.

As a result, photographers have the exclusive right to reproduce, display, and distribute their images.

Unauthorised use of a copyrighted photo can result in legal action and potential financial penalties.

Fair Use and Exceptions

There are certain exceptions to copyright law, such as fair use.

Fair use permits the limited use of copyrighted material without permission from the rightful holder for purposes such as criticism, parody, news reporting, research, and education.

However, it is essential to understand that fair use is assessed on a case-by-case basis, and there are no guarantees that your use of a copyrighted image will qualify as fair use.

Suggested Reading: Fair use defense to copyright infringement

Who is the Copyright Holder in Case of a Drawing Made from a Photograph?

In the case of a drawing made from a photograph, there are two separate copyright holders:

The Photographer: The person who took the original photograph holds the copyright for the photo itself. They have the exclusive rights to reproduce, distribute, display, and create derivative works based on their photograph.

The Artist: The person who created the drawing from the photograph holds the copyright for their drawing, as it is a separate, original work of art. However, this is subject to the drawing not infringing on the photographer’s copyright.

If the drawing is considered a derivative work, the artist may need permission from the photographer to create and use their drawing legally.

It is essential for artists to respect the rights of photographers and seek permission, use public domain images, or rely on Creative Commons licensed photos when drawing from a photograph to avoid copyright infringement issues.

What Elements of a Photograph Used as a Reference for a Drawing Are Not Subject to Copyright?

When a drawing is made from a photograph, there are certain elements that do not come under copyright protection. These include:

Factual Information: Copyright does not protect facts or information conveyed in a photograph or a drawing.

For example, if a photograph depicts a historical event or a well-known landmark, the facts and information associated with the event or landmark are not protected legally.

Ideas and Concepts: Copyright attempts to protect the expression of an idea or concept, not the idea or concept itself.

If a photograph or a drawing conveys a general idea or theme, other artists are free to explore the same idea or theme in their work, as long as they do not directly copy the original expression.

Common Elements and Stock Characters: Certain common elements, stock characters, or basic shapes and forms might not be subject to legal protection.

For example, drawing a generic tree or a basic geometric shape from a photograph would likely not be protected by copyright.

Public Domain Elements: Any element within the photograph that is already in the public domain is not protected by copyright.

This could include older works whose copyright has expired, works created by the U.S. government, or items that were never eligible for copyright protection.

Scènes à Faire: This term refers to standard or indispensable elements in a particular genre or setting that are not protected by copyright.

For example, if a photo shows a typical scene in a specific environment, like a desert or a cityscape, certain aspects of that scene may not be protected due to their common or expected nature.

It is important to note that while these elements may not be subject to copyright protection, directly copying a photograph’s composition or substantial elements could still constitute copyright infringement.

Artists should exercise caution and consider the concepts of fair use and transformative art when drawing from a photograph.

Is Drawing from a Photo Copyright Infringement?

Yes, sketching or drawing someone else’s photograph without their permission can potentially be a copyright violation.

Copyright law grants exclusive rights to the owner of a photograph to control the use, reproduction, and distribution of their work.

Even if you are using the photograph as a reference or inspiration, creating a drawing or sketch that closely resembles the original photographic image may be considered a derivative work, which is also protected by the said law.

However, there are certain exceptions to the said law, such as fair use, which may allow you to use someone else’s photograph without their permission.

Fair use typically applies to educational, research, or commentary purposes, and the use must not negatively impact the commercial value of the original work.

For example, if you are a student studying art and you use someone else’s famous artwork as a reference for a class assignment, it may be considered fair use.

On the other hand, if you sell your drawing or sketch without the permission of the original photographer, it could be a copyright violation.

It’s important to note that copyright law can be complex and varies by jurisdiction, so it’s always best to consult with a legal expert if you have any questions about the use of someone else’s photograph.

Related Article: Is Tracing a Photo Copyright Infringement?

How Can Drawing from a Photo Result in Infringement?

Drawing from a photo can potentially be copyright infringement if the photo is protected by copyright and the drawing is a reproduction or derivative work of the photo.

Copyright law grants the creator of an original work, such as a photograph, the exclusive right to control how the work is used and distributed. This includes the right to create derivative works based on the original.

Derivative Works

When an artist creates a drawing based on someone else’s photograph, the resulting artwork is considered a derivative work.

Derivative works are new creations that incorporate a pre-existing copyrighted work.

The original copyright owner has exclusive rights to create derivative works, so creating one without permission can lead to infringement.

Identifying Infringement

Determining whether a drawing infringes on a photo’s copyright depends on various factors, including the level of similarity between the two works and the extent to which the drawing borrows from the original photo.

If the drawing is substantially similar to the photograph and borrows key elements that make the photo unique, it may constitute infringement.

Drawing from Photos: Why Artists Look Beyond the Lens

For a variety of reasons, artists use pictures for their drawings that other photographers have captured.

Some artists may use photographs as a reference or source of inspiration for their artwork, particularly if they are creating a realistic or representational piece.

Photos can provide an easy and convenient way to capture details or compositions that might be difficult to reproduce from memory or imagination.

Additionally, using a photo reference can help an artist achieve greater accuracy and realism in their artwork.

Another reason why artists may use photographs as a reference is that they may not have access to the subject matter they want to draw from in real life.

For example, an artist may want to draw a particular animal or location but may not have the opportunity to visit or observe it in person. In these cases, using a photo reference can be a useful alternative.

Furthermore, some artists may choose to draw from photos taken by other photographers as a way to collaborate or pay homage to another artist’s work.

For instance, an artist may draw from a photo taken by a friend or colleague as a way to showcase their photographic talent alongside their own artistic abilities.

Overall, there are many reasons why artists may choose to draw from photos taken by other photographers.

Whether for reference, inspiration, or collaboration, photos can be a valuable resource for artists looking to create meaningful and impactful artwork.

Painting from a Photo: When it’s Not Copyright Infringement

The use of a photograph in the process of creating a painting may not be regarded as a copyright infringement in certain circumstances.

Here are some possible scenarios where using a photograph may be allowed:

Public Domain Photographs

If a photograph is in the public domain, meaning that its copyright has expired or it was never copyrighted, then anyone is free to use and adapt it without obtaining permission or facing a claim for copyright infringement.

The exact rules for determining if a photograph is in the public domain can vary depending on the country and the specific circumstances.

Permission from the Photographer or Copyright Owner

If an artist has obtained permission from the photographer or the copyright owner of a photograph, then they can use that photograph to create a painting without infringing on any copyrights.

The permission can be in the form of a license, agreement, or written consent.

The artist should ensure that the permission covers the specific use they intend to make of the photograph, such as creating a painting, and not just using the photograph in general.

Transformative Use

If an artist uses a photograph in a transformative way, meaning that they create a new work that is substantially different from the original photograph and adds their own creative elements, then they may not be infringing on the photographer’s copyright.

For example, if an artist uses a photograph of a landscape as inspiration for a painting, but changes the colors, composition, and art style, then they have created a new work that is not just a copy of the photograph.

Fair Use

Fair use is a doctrine in copyright law that allows for limited use of copyrighted material without obtaining permission, under certain circumstances.

In the context of using a photograph to create a painting, fair use may apply if the use is for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

However, determining whether a particular use qualifies as fair use can be complex, and it is ultimately up to a court to decide.

How to Draw from Others’ Pictures Without Leading to Infringement?

Creating a drawing from another person’s picture without infringing on copyright involves using the picture as a source of inspiration while ensuring the resulting artwork is unique and original.

Here are some examples of how to draw from others’ pictures without leading to infringement:

Stylized Interpretation: Instead of directly copying the picture, create a stylized interpretation of the subject matter by using a distinct artistic style, such as cubism, abstract expressionism, or impressionism. This can make the resulting artwork substantially different from the original picture.

Focus on Particular Elements: Choose specific elements from the picture, such as a color scheme, texture, or pattern, and incorporate them into your drawing, while creating an entirely new composition and subject matter.

Different Perspective: Use the picture as a reference for lighting, proportions, or other technical aspects, but create a new composition with a different perspective or viewpoint that significantly alters the original image’s appearance.

Create a Collage: Combine elements from multiple pictures, rearranging and modifying them to create new and unique artwork. This helps ensure that the resulting drawing is not substantially similar to any single photograph.

Parody or Satire: Create a parody or satirical drawing that comments on or critiques the original picture or its subject matter. Parody and satire often fall under fair use, which can protect the artist from copyright infringement claims.

Incorporate Original Elements: Add original characters, objects, or scenes to the drawing that was not present in the original picture. This can help create a unique and transformative work that is less likely to infringe on the original photograph’s copyright.

How to Determine If a Drawing From a Photo is an Infringement?

Determining whether a drawing from a photo constitutes infringement depends on a variety of factors, including the nature of the photograph, the extent of the similarities between the photograph and the drawing, and the purpose and context of the drawing.

Here are some general considerations:

Copyright Law

The first step in determining whether a drawing from a photo is an infringement is to assess whether the photograph is protected by copyright.

In most countries, copyright protection is automatically granted to an original work of authorship, including photographs, from the moment it is created.

If the photograph is protected by copyright, the person who created the drawing will need to obtain permission from the copyright owner to use the photograph as a basis for the drawing.

Transformative Use

Even if the photograph is protected by copyright, the drawing may be considered fair use or non-infringing if it is transformative, meaning that it adds significant new expression, meaning, or message to the original work.

For example, a drawing that alters the original photograph in a way that creates a new message or emotional impact may be considered transformative.

Degree of Similarity

Another factor to consider is the degree of similarity between the photograph and the drawing.

If the drawing closely resembles the photograph in terms of composition, subject matter, lighting, and other elements, it may be more likely to be considered an infringement.

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On the other hand, if the drawing takes only general inspiration from the photograph, such as capturing the overall mood or feel of the scene, it may be less likely to be considered infringement.

Purpose of the Drawing

The purpose and context of the drawing are also relevant. If the drawing is being used for commercial purposes, such as in an advertisement or for merchandise, it may be more likely to be considered an infringement.

However, if the drawing is being used for educational, journalistic, or artistic purposes, it may be more likely to be considered fair use or non-infringing.

Ultimately, determining whether a drawing from a photo is an infringement is a complex legal question that depends on the specific facts and circumstances of each case.

It may be helpful to consult with an intellectual property lawyer to assess your specific situation.

Why Copyright is Important for the Artist?

Copyright is important for artists for several reasons, as it helps protect their creative works and provides them with various benefits:

Exclusive Rights: Copyright grants artists exclusive rights to reproduce, distribute, display, and create derivative works based on their original creations.

These rights give artists control over how their work is used and ensure that they can decide who can use their work and under what conditions.

Financial Incentive: Copyright allows artists to earn income from their creations. They can sell, license, or otherwise monetise their copyrighted works. This financial incentive encourages artists to create new works and invest time and resources in their craft.

Recognition and Attribution: Copyright protection ensures that artists receive proper recognition and attribution for their work. This helps establish their reputation, build their portfolio, and promote their artistic career.

Preventing Unauthorised Use: Legal protection helps artists prevent unauthorised use or exploitation of their work. It enables them to take legal action against those who infringe on their rights, ensuring that their creative output is not misused or misrepresented.

Moral Rights: In some jurisdictions, copyright includes moral rights, which protect the personal and reputational interests of the artist.

These rights allow artists to preserve the integrity of their work, prevent distortion or misrepresentation, and ensure proper attribution.

Encouraging Creativity: Copyright protection encourages artists to create new and original works by providing them with legal protection and financial incentives. This contributes to a vibrant artistic and cultural landscape, benefiting both artists and society as a whole.

What is the Impact of Copyright on Artists?

Copyright can have a significant impact on artists in various ways.

By granting creators exclusive rights over their works, copyright law enables artists to protect and monetise their creations.

Here are some ways in which copyright affects artists:

  • Protection: Copyright gives artists legal protection against others who may want to use or copy their work without permission. This protection is crucial in preventing others from profiting off an artist’s hard work and creativity without proper compensation.
  • Income: Copyright provides artists with the opportunity to earn income from their work by licensing or selling their copyrighted material. This can be a significant source of income for many artists, allowing them to make a living from their creativity.
  • Control: Copyright gives artists control over how their work is used, distributed, and reproduced. This control can be essential in ensuring that an artist’s work is presented in a way that accurately represents their vision and meets their artistic standards.
  • Piracy: Copyright infringement and piracy can have a devastating impact on artists, especially those who rely on income from their creative works. Piracy can result in lost revenue, reduced exposure, and damage to an artist’s reputation.

Overall, copyright is an essential tool for artists, enabling them to protect their creative works, earn a living from their creations, and control how their work is used and distributed.

The Limitations of Crediting: Why it Doesn’t Guarantee Legal Usage

Crediting an artist is an important step in acknowledging their contribution and giving them recognition for their work.

However, simply giving photo credit to an artist does not automatically make the usage of their work legal and prevent you from infringing on their rights.

In order to use someone else’s work, you need to obtain the necessary legal rights to do so. This can include obtaining a license or permission from the copyright owner or using the work in a way that falls under the doctrine of fair use (if applicable).

Even if you credit the artist, if you do not have the proper legal rights to use their work, you may still be infringing on their copyright.

Crediting the artist without obtaining the proper legal rights may also give the false impression that you have permission to use their work, which can lead to further legal battles or issues.

Therefore, it is important to not only credit the artist but also obtain the necessary legal rights to use their work in order to avoid infringing on their rights.

Is it Copyright Infringement to Draw a Photo?

Remember to keep copies of all correspondence and documentation related to the infringement, as these may be necessary for legal proceedings.

It is always best to protect your work by registering it with the relevant authorities to establish ownership and secure your rights as a creator.

Drawing a photo that you have taken yourself or a photo that is in the public domain is not copyright infringement.

This is because copyright law protects the specific expression of an idea, not the idea itself.

So, if you have taken the photo yourself or the online photo is in the public domain, you have the right to use it as a reference for your drawing.

For example, let’s say you take a photograph of a beautiful sunset while on vacation. You then use that photograph as a reference for a drawing of the sunset.

Since you took the photo yourself, you own the copyright to the photo, and you have the right to create derivative works based on it, such as a drawing.

On the other hand, if the photo is protected by copyright and you use it as a reference for drawing its image without permission from the owner of copyright of that picture, it may be considered copyright infringement.

For instance, if you use a photograph of a celebrity taken by a professional photographer as a reference for your drawing, without obtaining permission or a license from the photographer or their agency, you could be infringing on their copyright.

Preventing Copyright Infringement

Obtaining Permission

One way to avoid allegations of copyright infringement when drawing from a photo is to obtain permission from the copyright holder.

This might involve contacting the photographer or the agency representing them and asking for a licensing agreement to use their work.

Using Public Domain Images

Another option is to use photographs that are in the public domain, meaning they are no longer protected by copyright.

Some websites offer databases of public domain images that artists can use without the worry of infringement.

Several websites offer collections of public domain images, such as:

  • Wikimedia Commons (commons.wikimedia.org)
  • Pexels (pexels.com)
  • Pickup Image
  • Public Domain Archive (publicdomainarchive.com)
  • PDPicks

Creative Commons Licenses

Creative Commons licensing is another way to find photographs that can be used without infringing on the exclusive rights of a photographer.

These licenses allow creators to grant specific permissions for others to use their work, often with certain conditions, such as attribution or non-commercial use.

Websites offering CC-licensed images include:

  • Flickr
  • Unsplash (unsplash.com)
  • Negative Space
  • SplitShire

Stock Photo Websites

Some stock photo websites offer free or paid licenses that allow you to use their images as references for your drawings.

Make sure to read the terms and conditions of the license carefully to ensure you are using the images appropriately. Examples of stock photo websites include:

Remember to always verify the licensing terms and conditions of the images you use as references to ensure you are not infringing on any copyrights.

What Measures can be Taken if Someone is Using Your Work Without Permission?

If someone is taking your work as a creator, there are a few steps you can take:

  • Identify the infringement: Determine exactly what work has been taken and how it has been used. Gather evidence of the infringement such as copies of the infringing work and any communication between you and the infringer.
  • Contact the infringer: Reach out to the person who is using your art without permission and inform them of the infringement. Ask them to stop using your work and remove it from any public display.
  • Send a Cease and Desist letter: If the infringer does not comply with your request, you may send a formal copyright infringement letter that demands they stop the infringement immediately. The letter should include details of the infringement, a demand for compensation, if applicable, and a deadline for compliance.
  • Consider legal action: If the infringement persists, you may want to seek legal action. Consult with an attorney who specialises in intellectual property law to assess the strength of your case and determine the best course of action.

Consequences of Drawing from a Photo

Drawing from a photo without permission or infringing on a copyright can lead to legal consequences, such as a copyright infringement lawsuit.

If the copyright owner discovers that you have used their photograph without permission, they may send a cease and desist letter, which would require you to stop using the photograph and possibly pay damages for the infringement.

If the case goes to court, you may be required to pay monetary damages, including any profits you made from the drawing, as well as legal fees and costs.

In addition to the legal consequences, drawing from a photo without permission or infringing on copyright can also damage your reputation and credibility as an artist.

It can be seen as a violation of the ethical standards of the art community and can lead to negative reviews or criticism.

It is important to respect the intellectual property rights of others and create original pieces that do not infringe on any copyrights.

Dealing with Accusations of Infringement

Responding to Cease and Desist Letters

If you receive a cease and desist letter accusing you of an act of infringement, it’s important to take it seriously.

You should consult with an attorney about copyright infringement letter that you received to evaluate the situation and determine the best course of action.

Ignoring the copyright notice could result in legal consequences, such as a lawsuit.

Legal Remedies

If you believe your work falls under fair use or is transformative, you may have a defense against accusations of infringement.

In such cases, you should work with an attorney to build a strong case and potentially avoid penalties or reach a settlement.

Learn more about the remedies for copyright infringement through our informative linked article.

Conclusion

In conclusion, drawing from a photo without permission or infringing on a copyright can have serious legal consequences, including potential lawsuits, damages, and legal fees.

It can also damage an artist’s reputation and credibility in the art community.

As such, it is important for artists to be aware of copyright laws and to obtain permission or create original works that do not infringe on any copyrights.

By doing so, artists can protect their own work and respect the intellectual property rights of others.

As a community, we should encourage originality and creativity in art while also promoting ethical practices and respect for intellectual property rights.

FAQs

Can I draw from a photo I found online without permission?

It’s best to assume that any photo you find online is protected by copyright.

To avoid infringement, you should obtain permission, use public domain images, or find high-quality photos with Creative Commons licenses.

What if I only use a small portion of the photo in my drawing?

Even if you only use a small portion of a copyrighted photo, it may still be considered an infringement.

The fair use analysis considers the amount and substantiality of the portion used, so each case is unique.

Is it okay to draw from a photo if I change it significantly?

If your drawing is transformative enough that it becomes a new creation with a different purpose or meaning, it may be considered fair use and not infringe on photographers’ rights. However, this is determined on a case-by-case basis.

Do I need to credit the photographer if I draw from their photo?

If you have permission to use the photo or if it’s under a Creative Commons license that requires attribution, you should credit the photographer.

Even if it’s not legally required, crediting the source is a good practice and shows respect for the original creator.

How can I find public domain images to draw from?

There are several websites that offer databases of public domain images, such as Wikimedia Commons, the Library of Congress, and Unsplash.

Make sure to verify the copyright status of any image you use to avoid potential infringement.

Is a drawing protected by copyright?

Yes, a drawing is protected by copyright as long as it is an original work of authorship and exhibits a minimum level of creativity.

Originality means that the drawing is independently created by the artist and is not copied from another source.

The minimum level of creativity required for legal protection is relatively low, so most drawings will qualify. Once a drawing is created, legal protection arises automatically without the need for registration.

Is redrawing copyright infringement?

Redrawing a copyrighted work without permission could be considered an infringement of copyright, especially if the new drawing is a direct copy or a substantially similar reproduction of the original work.

In such cases, the redrawn work may be seen as a derivative work, which is right reserved for the original artist.

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