Friday, June 01, 2007

Copyrights On Illustrations Based On Photos

I asked on Yahoo Answers
If I illustrate a photo - do I have to ask permission from the copyrights' owner? (In case it is hard to get permission from copyrights' owner but you need to publish the content of the photo. By "illustrate" I mean making a new creation based on a copyrighted photo.

Member since: 05 September 2006 Total points: 25,960 (Level 7)
Yes, and especially if used for commercial purposes. It is like sampling a record.

Member since: 11 May 2007 Total points: 290 (Level 2)
The law is on the side of the copyright owner, so if you publish your revision of the copyright owner's work without prior consent you can be sued for copyright infringement. You need to ask yourself how badly you need to use that photo. The photographer may simply wish to be acknowledged and given a photo credit, or he may ask for a fee. If he asks for a fee you then have to decide if it's worth the money. If you decide not to pay, but use the photo anyway, then you are at risk of being sued.

Charlie P
I think your respondents missed the question. Making an illustration from someone's photo is not copying. It is your interpretation of another's creation. Regardless of the source of your inspiration, your creation is yours and not a copy. So copyright law does not apply. Were I to take a camera and recreate the exact same photo that would probably be considered an illegal copy. Were I to copy an illustration so that it is not substantially different from the original that would, most likely, be interpreted as a violation of copyright. In front of the Public Library in Columbus, Indiana is a massive, wonderful Henry Moore sculpture. I can photograph that sculpture, or parts of it, as much as I want and publish the photos in any way I desire. I have done so. I can pose a model against the sculpture and publish those photos without infringing on any rights of the estate of Henry Moore. And I have done so. I can draw the sculpture in pencil or make an oil painting of it with it as the only content. It's a huge sculpture, 10-15 feet tall. I could make a 1-foot tall copy of it in a different medium (like stoneware) and title it "Homage to Henry Moore." So why can't I go into the Museum of Modern Art and do the same thing? The Columbus Henry Moore is in a public space; MOMA can control who has access to their sculptures and who can photograph them and who can publish (i.e., sell) the photos. MOMA won't stop you from sketching their sculptures. Sampling a song is making an exact copy. For that you need permission and will probablly have to pay royalties. Not, however, if I use that sample in a piece of performance art done for free. I can use a Jimi Hendrix guitar riff in the middle of my own guitar composition without infringing on copyright. As long as I don't copy the entire Hendrix creation I have used his creativity within my own creation. No copyright problem. You can't take someone's creation and claim it as your own. That's called plagerism. You can, however, use anyone's work or ideas as food for your own creativity. You can always interpret another's creation through your own eyes. Think of Andy Warhol's Campbell's Soup Cans or Wierd Al Yankovic's song parodies. Ask any good lawyer (if there is such a thing) and they should be able to cite tons of case law to support both parodies and interpretations. Artists copy from other artists. It has always been so and will continue to be so.

If Charlie P is right competent painters can make a fortune enabling publishers to publish content that is
1. Copyrighted
2. Hard to get permission (owner of copyrights is hard to find; not accessible; it is not clear who is the owner of the copyrights; you need to publish in a hurry, etc.

Still I'd like to know more about this interesting issue and readers are invited to comment.

1 comment:

Anonymous said...

Making a drawing of a photo creates a derivative work, and US copyright law is specific about derivative works - you can claim a copyright on the new work, but only on the new parts. For the derivative parts, you need permission from the copyright holder. See this page for more on derivative works:

You might be able to make a fair-use defense, depending on how much of the original work is used, how it was used, and how original the photo was in the first place. That depends on what you are copying. If you're doing it specifically to get around copyright law, I doubt a court would consider that fair use.