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Copy or Borrow From Other Artists? How Far Can You Go?

Q: I like to paint landscapes but I don't live in an exotic place and don't get to travel often. For instance, I like to paint Caribbean seascapes and Hawaiian waterfalls but I've never actually been to those places. My question is, since I paint from landscape photographs I find on the Internet, and since the landscapes depicted in the photographs are not the property of the people who took the photographs, am I violating any copyright laws by using photographs of nature that I did not take? The last time I checked, nobody owned the Grand Canyon, but I'm sure many artists have painted it using photographs they didn't take.

A: Creating paintings from photographs of exotic places that have been taken by people other than yourself may or may not violate copyright laws. This can be illustrated through the following example. Let's say that you're a professional writer and you're assigned to write a feature article about the current political climate in Russia. Rather than travel to Russia to conduct personal interviews with politicians and other qualified authorities, you research, read, and accumulate information about Russian politics from previously published content in newspapers, magazines, online databases, and books. Your research notes become the basis for your article.

Your completed article does not violate copyright laws if you take generally known information about Russian politics, currently available in a variety of publications, and incorporate it into an article framework that you structure entirely on your own, and that represents your own personal point of view. If, however, your article contains extensive passages involving specific ideas, thoughts, facts, or theories that are unique to one or another author or resource, then you may well be violating copyright laws. The key here is how much of those specifics you "borrow" and how literally you incorporate them into your writing. Without getting into legal detail, the more you borrow and the more literally you write it into your article, the more likely you are to be violating copyright laws.

Similarly, making paintings from photographs taken by people other than yourself may or may not violate copyright laws. If, for example, a particular photographer is known for portraying landscapes in certain unique ways that are readily identifiable with that photographer, and you copy her style of portrayal or incorporate it literally into your art, then you may be liable for infringing on her copyright. This is especially true if you do not notify her that you've done some serious "borrowing," and then place your art up for sale. Using her techniques to make money for yourself, without her permission, and without paying her royalties for borrowing those techniques puts you significantly at risk for infringing on her copyright.

On the other hand, if your painting is your own personal interpretation of the photographer's techniques for achieving certain visual effects, and you use her techniques as inspiration rather than copy her directly, you're most likely in the clear. Problems only tend to occur when artists extensively and obviously copy or imitate the work of other artists, assuming that what's copied is readily identifiable with specific artists. Keeping at a distance from copyright issues means that you interpret or are inspired by the techniques of other artists rather than copy or imitate them directly. Artists have taken this moderate approach to "borrowing" the techniques of other artists for centuries.

In your case, the best way to avoid over-reliance on the work of any photographer in particular, whether intentional or by accident, is to create each one of your paintings from a variety of different views of your chosen subject matter taken by a number of different photographers. Also stay away from specific or more unusual views that have been photographed by only a few photographers. For example, if only one photographer is known for photographing a particular subject from a particular vantage point, you would be well advised not to paint that subject from that vantage point unless you get permission from the photographer. Several years ago, a photographer successfully sued artist Jeff Koons for not consulting her before making a ceramic that very closely resembled her photograph of puppies sitting on a park bench.