Using Photographs as reference - Copyright Infringement?

[agreeable]

Hi All.

I have set myself as a little business painting - using photographs as reference.
Of course to do the portraits of heroes I am using photographs from 'professional' photographers.

A recent web search about painting from other's photographs led to the conclusion that even if the painting is not a 'photo-realistic' reproduction of the photograph it can still be seen as illegal use. Getting rights to use the images from Getty and AP etc is very expensive.

I am only concerned as I realize my paintings are now online and I have sold a couple. So they could be seen by said photographer - who may make the claim that it is their image I am using.

Obviously many people do this daily to paint celebs and the like with out any problems - but it would be just my luck...

Any thoughts out there?
I do have my father-in-law a lawyer looking into it but it's not his field.

Thanks All.

[emily g]

If a reasonable observer was shown the photo and the painting side by side and could tell that you copied the photo, then yes you could have a problem.

The original photographer owns the copyright to their photo, and you need their permission to make a copy as a painting.

[agreeable]

Emily - Thanks so much.

Considering I am thinking about this I am obviously aware and concerned about the issue.

I guess my other question is this: How concerned should I be?

I do alter the photographs - ie blur out everything except the subject for the portrait. The painting is then generally painted in a non realistic manner and abstracted colour. Admittedly putting the photo next to the painting you do see that it was used. But so could a number of photographer's images who were also there - maybe I was.

I guess that's my point - how to paint 'stars/celebs/icons' without confronting this issue. CA is full of portraits of actors etc obviously created in the same manner.

Is it just a chance we take?
Is it a question of ethics?

Does anyone have experience of this and has anyone asked a 'professional press' photogrpaher for permission to use their images - what was the result?

Thanks again.

[J Wilson]

I guess that's my point - how to paint 'stars/celebs/icons' without confronting this issue. CA is full of portraits of actors etc obviously created in the same manner.

Well, you change as much as you can, preferably redrawing the whole thing. If you have ten different images of Keira Knightly for example, draw a new image of her that looks nothing like one of the specific images you found. Changing the background isn't enough. You'd need to change the clothing, maybe the hairstyle, the position of the body, and angle of the head, etc. You should have enough information to get all of the details right and get a good likeness. Absolutely do NOT use a photo as is if you want to be any kind of professional artist, as it's very unprofessional. Professional artists that do this kind of thing are working for companies that have the rights. If you don't have the rights, or are working for someone who does, don't copy them.

It's a lot like you do a portrait for whatever your standard fee is, and then someone takes the image you sold them and they make posters and tee shirts and make money off YOUR labor. That's pretty much what you are doing to these photographers.

Is it worth their time to come after you? Probably not if you are just selling a few originals here and there, which is why you see people often doing this kind of thing out in the open. If you are being very public about it (like your website) you might get a Cease and Desist order, which is just a legal way of saying "stop doing that!" and they might threaten lawsuit, but I doubt they'd follow through on it unless they stood to make money from it (I think they can go after you for whatever profits you made, and maybe some extra if they feel your images harmed their original work's value). If the image is owned by someone big and very protective, like Disney, they might sue you just to protect their rights and to deter anyone else from trying it.

So in the end, copying is very bad. Create something new.

[J Wilson]

Admittedly putting the photo next to the painting you do see that it was used. But so could a number of photographer's images who were also there - maybe I was.

If you tried to use that reasoning be prepared to prove you were there. That won't hold off suspicion or stop a lawsuit.

[agreeable]

Thanks Dweller,

Excuse my British Flippancy I certainly would not use that as any defense.
If asked to Cease and Desist I would gladly - if asked if it was the case I would admit it.

I am not looking for a way out.
Rather I am attempting to work something out - something that has been on my mind - been on my mind because I am honest and do care.

I have asked the same question to a number of established artists that do similar work. I wait for their responses after which I think I will be approaching a couple of photographers to see what happens.

I think my difference of opinion at the moment is that when I am more established and am making money from this situation I could afford to make financial relationships with photographers - right now it seems prohibitive.

In regards to it not being art - art is in the eye of the beholder - personally I think that photorealist painting/drawing is not art - I admire the talents of those artists but figure you might as well own the photograph.

My painting uses paint to exaggerate the emotions and energy of the subject. Definitely an artistic interpretation.

I look forward to more in this discussion and from elsewhere and hope to share my conclusions with you later.

Thanks again.

[Stephen Mason]

If a painted a portrait from a photograph and this photograph was copyrighted but i was not intending to sell the image i was just doing it as practice. That wouldnt be agaisnt copy right would it? because it wasnt for profit?

What would happen if then in a years time someone see the image and wanted to buy it from me would i not be aloud to sell it? would i have to give it away? lol, the law is flaud.

http://youtube.com/watch?v=7Q25-S7jzgs interesting to watch, x