Painting from published photographs
Raymond Lewkowicz
done to death in the past, but can someone give me their understanding
as to what current opinion and practice is concerning the legitimate
use of copyrighted photographs?. If there is a FAQ on this subject,
please point me to it. In addition to the bare legal aspects of this
subject, I would like to hear arguments for various positions taken.
Here is what I am concerned with:
It seems to me that making a painting based on a copyrighted photograph
is not the same thing as reproducing a photograph by mechanical means,
say, with a scanner and is not a violation of the image's copyright
holder. I'm not talking here about photo realism (although comments
relevant to this are also welcome); I'm thinking along the lines of a
painting, say, in an impressionistic style, perhaps with departures in
hue, value, and intensity from those in the photograph, that is clearly
not meant to duplicate the photograph in any detailed way, but which is
based on the photograph and recognizable as such to anyone familiar with
the photograph.
Some specific questions:
(1) What exactly is it in a photograph that is protected by copyright?
(2) What can one say about a painting based on a copyrighted photograph
of a scene that is accessible to the painter from which to make his own
photograph under identical circumstances of lighting, etc., in such a
way as to be almost indistinguishable from the published photograph.?
(3) In (2) above, is there a violation of copyright if the painting is
made from such a photograph ? How would anyone know which the painter
painted from --does the photographer "own" the scene? Can no one else
photograph the scene in nearly exactly the same way?
(4) Is a painting (or photograph, for that matter) that has a
copyrighted image (painted, photographed or otherwise) as part of the
subject, in violation of the images copyright ? For example, is a
painting of a person together with a copyrighted image ( for example,
a painting of Joe Blow holding, or pointing to, a famous recognizable
image, perhaps one of Mickey Mouse, or of Marilyn Monroe holding her
skirt down over the air vent) a violation of copyright?
(5) What about a painting based on a black and white photograph to
which original color is supplied by the painter? Is this considered a
violation of copyright?
(6) What about the gesture of a figure or a arrangement taken from a
published photograph but with people and objects altered to no longer
resemble the original people or objects. As an example, the Marilyn
Monroe photo alluded to above, but with some other woman in her place.
Or, while not quite the same thing, a painting of Chicken Gumbo Soup
cans in Andy Warhol's arrangement of Tomato Soup Cans.?
By the way, how did Warhol get away with using the Campbell Soup Company
label? or did he? Come to think of it, he used images of Marilyn in
one of his paintings. Did he get permission? If not, how did he get away
with it? If he had used Mickey Mouse in one of his paintings without
Disney's permission I feel sure he would have heard from Disney right
away.
It must be apparent to anyone who reads this, that I would like to use
published photographs, wholly or in part, as a basis for some of my
paintings and would like to know the limits of such use and arguments
pro and con concerning these limits. To be very safe, I suppose one
could try to track down the copyright holder and attempt get permission.
But, is there or shouldn't there be some consistent, clear doctrine of
"fair use" of published images?
Here is a quotation from Robert Fawcett's book "On the Art of Drawing".
".. I recall an incident of some years ago when a painter was called to
account after it was disclosed that a work of his had had its
inspiration from a published photograph, as though this was dishonest.
What nobody seemed to point out was that from this initial prompting he
painted a picture which had a plastic reality the photograph never had.
It was doubtful whether he consulted the photo again after the first
hour---the weeks which followed were an intimate communing with himself
and the canvas in a concern with values understood only by a painter of
sensitivity. But through all this, a vague similarity of subject matter
was still recognizable and he was jumped upon by some who seemed to
confuse amateur sleuthing with aesthetic appreciation."
(Fawcett does not identify the painter, nor the painting).
Any discussion of this topic in the present forum will be greatly
appreciated by me and, I think, would be of general interest.
Craig Nolan
But it seems to me that the subject of the Photo is in no way Copyrighted,
But the framing, Light, composistion and even that particular Moment in time IS
Copyrighted.
That being said I think there are very few "literalists" among us painters, and
we (atleast I) use Photographs as Inspirations to paint the work. Thus it is
Our "impression" (no mater how abstract or cubist we are) of the original that
ends up on the canvas. The original remains intact and was not reproduced.
Simply interpreted.
thats My thought at anyrate.
From the typical newbie standpoint...
Student of Painting, Beginner extrodinaire :o)
Jaxart
says...
>
>Well, I am new Here,
>But it seems to me that the subject of the Photo is in no way Copyrighted,
You would be wrong. The courts have already decided on this
issue. A good case to refer to is the one where Jeff Koons
lost on appeal when he created a sculpture of 'puppies' using
someone else's photograph as his reference.
On the other hand, if you want to risk being sued you can
take a chance that you'll never be discovered or if you are
you won't be sued or the jury in your case will decide in
your favor.
There is a ton or artwork out there, including some of my
own, that uses famous artists/art works in a parodic manner.
The problem arises when you 'copy' the other artist's work
in too literal a fashion. As in Jeff Koons case, he created
a three dimensional sculpture but the subject was so much
like the photograph that the photographer was able to make
his case. The fact that Jeff Koons was at his peak at the
time made him a target ripe for being sued -- money you know.
--
============================================================
For a unique art experience visit:
http://www.zianet.com/jaxart/index.html
============================================================
alchemy5
inherently colaberating with another artist regardless of the
legal situation. Even if you feel yourself to be within the
limits of the law you really should credit the photographer.
Think about how you would feel if you walked into a gallery and
discoverd a painting that was obviously inspired by one of your
works. There is both an element of flattery and an element of
invasion in that situation. So if you possibly can, contact the
photographer and ask if you can work with her or him. With the
internet it is amazing who you can actually contact when you
really want to.
Also keep in mind that copyright law changes every day and is
very
open to legal interpretation by the court. If you have questions
you really should talk to a lawyer. Many artits have had dealing
with courts on these matters but Lawyers have put a lot of time
and effort into understanding these situations. Their experience
is worth the time and money.
__Dave Thurlow
-----------------------------------------------------------
Got questions? Get answers over the phone at Keen.com.
Up to 100 minutes free!
http://www.keen.com
Andrew Werby
Raymond Lewkowicz wrote in message <396176DA...@wright.edu>...
>This topic has probably come up before and I apologize if it has been
>done to death in the past, but can someone give me their understanding
>as to what current opinion and practice is concerning the legitimate
>use of copyrighted photographs?. If there is a FAQ on this subject,
>please point me to it. In addition to the bare legal aspects of this
>subject, I would like to hear arguments for various positions taken.
>
>Here is what I am concerned with:
>It seems to me that making a painting based on a copyrighted photograph
>is not the same thing as reproducing a photograph by mechanical means,
>say, with a scanner and is not a violation of the image's copyright
>holder. I'm not talking here about photo realism (although comments
>relevant to this are also welcome); I'm thinking along the lines of a
>painting, say, in an impressionistic style, perhaps with departures in
>hue, value, and intensity from those in the photograph, that is clearly
>not meant to duplicate the photograph in any detailed way, but which is
>based on the photograph and recognizable as such to anyone familiar with
>the photograph.
[Since this has come up recently, I'll quote the exchange I had with the
person who asked similar questions. I'm not a lawyer, so these are just my
personal opinions- although I think I'm correct, of course...]
From: Andrew Werby <and...@computersculpture.com>
Subject: Re: Question about copying museum sculptures?
Date: Thursday, June 08, 2000 11:31 AM
David Thatcher wrote:
I feel that it is up to the owner whether or not an
>art object may be photographed and prints made from the photo,but if an
>accurate repro is made to sell,it is up to the creator/artist.
[You can legally take photos of a living artist's work in your collection if
they are for your own private use, but if you were to try to sell prints,
that would be a violation of the artist's copyright. If you put the images
up on your non-commercial website, this would be more debatable- the
internet is still a "gray area" of the law, which is only now being worked
out- but you'd be well-advised to get the artist's permission in writing
first.]
>Do living artists get royalties for a photo of their work that is in a
>text book?
[While there is a "fair use" exception in the copyright law which covers
educational purposes, the purpose of a textbook publisher is also to make
profits. I don't think it would be impossible for an artist to recover
damages from a textbook company that reproduced a work without permission.]
Or a museum or private collector for a photo of work done by
>an artist that has been dead for a century and is used as an example of
>a style?I hope not.
[Yes, I believe that in this case the photographer could assert a copyright
claim.]
>Reproductions are used in many ways that are not commercial but someone
>still makes money(at least to cover expenses).
>I own a number of one of a kind artworks and whether or not they are
>photographed and the photo is reproduced somewhere is completely up to
>me.I can't run copies and sell them but I can let a magazine print
>photos that have my paintings in them(say a lifestyles mag does an
>article on my home and take pics of my living room).
[Again, this is a gray area. I recall an artist recovering damages from a
film company which used his work as set decoration without credit or
compensation.]
>I often use photos of people as a visual source when I sketch out ideas
>for 2D and 3D work because the image gave me an idea to make a
>different image.Am I then responsible to the photographer because I
>used a pose that was in his/her photo or am I responsible to the person
>that was in the photo.
[If you are making a painted work that is derivative of a photograph, then
yes, the photographer can sue for copyright violation and the model for
privacy invasion. If the model is a celebrity, this is done a lot. Of
course, the less derivative the painting is- say if the copied figure is
only one of 20 or so in the scene, they were changed significantly in the
process, and the other images were derived from other sources- then the more
secure you would be.]
How about the guy that proccessed the film?
[I don't think that confers any intellectual property rights.]
Or
>another party that posted it on a free access website where I first saw
>the image.How far can you take this?
[The act of posting something on a website doesn't, of itself, create any
intellectual property rights either. Copyright still inheres to the original
artist. ]
Am I free to use anything that is
>not copy righted or signed to use in my artwork and then sign it so no-
>one else can legally use it the same way I did?
>
>David Thatcher
[In theory, yes- unless you're talking about people. In practice, it's
sometimes difficult to figure out what is copyrighted and what is not. In
New York, for instance, some of the familar buildings constituting the
skyline have been copyrighted, so you can be charged with copyright
violation merely for selling a picture you took of the view from your
window. These guys are pushing the envelope a bit, but as far as I've heard
they haven't been laughed out of court yet...]
Andrew Werby
http://unitedartworks.com
Some specific questions:
>
>(1) What exactly is it in a photograph that is protected by copyright?
[The unique expression of an idea- not the idea itself.]
>
>(2) What can one say about a painting based on a copyrighted photograph
>of a scene that is accessible to the painter from which to make his own
>photograph under identical circumstances of lighting, etc., in such a
>way as to be almost indistinguishable from the published photograph.?
[If you were to recreate a famous photograph, it would still (arguably) be a
derivative work. You could, for instance, hire some models to raise a big
flag and pose them yourself, but the guy who shot "Raising the Flag on Iwo
Jima" (or his heirs) could still recover damages from you. If it was a
generic street scene, you'd be on safer ground (unless there were any
copyrighted buildings in the background, or celebrity look-alikes in the
foreground).]
>
>(3) In (2) above, is there a violation of copyright if the painting is
>made from such a photograph ? How would anyone know which the painter
>painted from --does the photographer "own" the scene? Can no one else
>photograph the scene in nearly exactly the same way?
[If your painting can be shown to be "derivative" of the photo in question,
then you lose.]
>
>(4) Is a painting (or photograph, for that matter) that has a
>copyrighted image (painted, photographed or otherwise) as part of the
>subject, in violation of the images copyright ? For example, is a
>painting of a person together with a copyrighted image ( for example,
>a painting of Joe Blow holding, or pointing to, a famous recognizable
>image, perhaps one of Mickey Mouse, or of Marilyn Monroe holding her
>skirt down over the air vent) a violation of copyright?
[Arguably, yes, if you haven't received permission to do this. Seward
Johnson did a sculpture based on the Marilyn photo you mention, which is
installed in New York city- but I think he got the required permission, and
the plaque near the statue credits the photographer. And whatever you do,
don't mess with the Mouse- Disney has legions of lawyers dedicated to
ferreting out this sort of thing and stomping it- I recently read how a
daycare center had to whitewash a mural they painted because it featured
Disney characters.]
>
>(5) What about a painting based on a black and white photograph to
>which original color is supplied by the painter? Is this considered a
>violation of copyright?
[Yes, unless you did it at the photographer's behest (get it in writing).]
>
>(6) What about the gesture of a figure or a arrangement taken from a
>published photograph but with people and objects altered to no longer
>resemble the original people or objects. As an example, the Marilyn
>Monroe photo alluded to above, but with some other woman in her place.
[That might fly, under the "parody" exception.]
>Or, while not quite the same thing, a painting of Chicken Gumbo Soup
>cans in Andy Warhol's arrangement of Tomato Soup Cans.?
>By the way, how did Warhol get away with using the Campbell Soup Company
>label? or did he?
[I think this was before corporations thought to copyright their advertising
imagery. And under the old statute, unless a copyright notice was affixed,
no infringement claim was possible. If he had put the labels on his own
brand of soup, he would have been liable under trademark law, but they
weren't expecting artists to do this then. Now, of course, everything is
copyrighted.]
Come to think of it, he used images of Marilyn in
>one of his paintings. Did he get permission? If not, how did he get away
>with it? If he had used Mickey Mouse in one of his paintings without
>Disney's permission I feel sure he would have heard from Disney right
>away.
[Maybe he sent her a copy? You might ask the Warhol Foundation.]
>
>It must be apparent to anyone who reads this, that I would like to use
>published photographs, wholly or in part, as a basis for some of my
>paintings and would like to know the limits of such use and arguments
>pro and con concerning these limits. To be very safe, I suppose one
>could try to track down the copyright holder and attempt get permission.
>But, is there or shouldn't there be some consistent, clear doctrine of
>"fair use" of published images?
[If you want to base your painting on a famous photo, either get permission,
or forget it. However, if you used a dozen of these photos in one painting,
you'd be on safer ground. Apparently the derivativeness is diluted thereby.]
>
>Here is a quotation from Robert Fawcett's book "On the Art of Drawing".
>
>".. I recall an incident of some years ago when a painter was called to
>account after it was disclosed that a work of his had had its
>inspiration from a published photograph, as though this was dishonest.
>What nobody seemed to point out was that from this initial prompting he
>painted a picture which had a plastic reality the photograph never had.
>It was doubtful whether he consulted the photo again after the first
>hour---the weeks which followed were an intimate communing with himself
>and the canvas in a concern with values understood only by a painter of
>sensitivity. But through all this, a vague similarity of subject matter
>was still recognizable and he was jumped upon by some who seemed to
>confuse amateur sleuthing with aesthetic appreciation."
>(Fawcett does not identify the painter, nor the painting).
>
>Any discussion of this topic in the present forum will be greatly
>appreciated by me and, I think, would be of general interest.
[I hope this helps- and if you're determined to go ahead, get a lawyer.]
Andrew Werby
http://unitedartworks.com
>