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Copy or Borrow From Other Artists?

How Far Can You Go?

Disclaimer: The information contained in this article is not to be construed as legal advice. If you have legal questions, consult an attorney.

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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 thought 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, if I sell these paintings online or in galleries, am I violating any copyright laws by using photographs of nature that I did not take? The last time I checked, nobody owns the Grand Canyon, but I'm sure many artists have painted it from photographs they didn't take.

A: Creating paintings from photographs taken by people other than yourself may or may not violate copyright laws. This can be illustrated with the following example. Let's say you're a writer writing an article about the current political climate in Russia. Rather than travel to Russia to conduct personal interviews with politicians and other qualified authorities, you read, research and accumulate information about Russian politics from previously published content online, and in newspapers, magazines 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 from a variety of sources or from a variety of publications (online or in print), and incorporate it into an article that represents your own original writing and personal point of view. However, if your article contains extensive passages from other writers involving specific ideas, thoughts, facts, or theories that are unique to those writers, then you may well be violating copyright laws. The key here is how much of those specifics you "borrow" or "appropriate," how literally you include them in your writing, whether you credit the original authors, and whether you have permission to include them. Without getting into legal detail because this is not an article about what specifically is or is not legal (and I'm not an attorney), the more you borrow and the more literally you write it into your article, the more likely you are to be violating copyright laws-- assuming you do not credit the authors, and have not asked for or received permission from those authors to reprint their writings.

Similarly, sourcing a painting or other work of art directly from photographs taken by people other than yourself may or may not violate copyright laws. For example, if you base your painting on generic subject matters, scenes or images that have been taken by numerous photographers over the years, you would probably not be violating copyright laws. But if a particular photographer is known for portraying images in certain unique ways that are readily identifiable with that photographer, and you copy one of their photographic compositions or incorporate it liberally and literally into your art, then you may be liable for copyright infringement. Again, this is assuming that you did not request permission from the photographer in advance to use the imagery in question. Using other people's compositions or images to make money for yourself without first asking their permission and agreeing in advance about how you intend to use those images puts you significantly at risk for infringement.

On the other hand, if your painting is your own personal interpretation of a photographer's techniques for achieving certain visual effects, and you use those techniques as inspiration for your ideas rather than copy them directly, you're probably in the clear-- assuming your painting is not readily identifiable as a copy of that artist's work. Problems only tend to occur when artists extensively, obviously AND knowingly copy or imitate the work of other artists, and it is readily identifiable with those artists. Keeping at a distance from copyright issues means that you interpret or are inspired by the techniques of other artists rather than are copying or imitating them directly. Artists have taken this moderate approach to "borrowing" or "appropriating" the techniques of other artists for centuries. In fact, pretty much every artist who has ever lived has created art has been inspired by the work of other artists. The question is how much and how directly you're inspired, and how extensively and obviously you borrow.

Back to your situation, 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. That way, your painting becomes more of a blend of different styles, views, effects or techniques-- and is more about how you have chosen to combine them rather than about any one photographer's style or image in particular. Also stay away from unique or more unusual views that have been photographed by only one or several photographers, and that are identified exclusively with them. 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 make a painting of that image unless you get permission from the photographer. One of the more famous cases in that regard involved a photographer who successfully sued artist Jeff Koons for not consulting her before making a ceramic that very closely resembled her photograph of a couple posing with multiple puppies while seated on a park bench.

What's the best procedure if you have legal questions or concerns about art you want to make that's being sourced in significant part from the work of another artist? Contact the artist personally, tell them what you would like to do and ask for permission. If you have any additional questions or concerns, you might also consult an intellectual property attorney. Good solid legal advice never hurts.