Many artists are unclear about what constitutes the fair use of other peoples' photo images. An artist who wishes to use a photograph as a reference for a painting should follow a combination of steps to make sure not to encounter the legal ramifications for plagiarizing a photographer's work. Photos that are part of the public domain and creative commons may require artists to attribute the source of the subject matter they include from these photographs.
Check For Copyright
Check the image you wish to source for your painting for a copyright. Some images either in a book or on the internet may not have copyrights, but this may not protect you from fines if the photographer chooses to sue you for improper use.
Only use the photo as a reference only, do not reproduce the photograph in its entirety. Courts use the term "substantial similarity" when evaluating allegations of image plagiarism. This means that even if you change a few details in the painting you make that you base on someone else's photograph, a court can still rule against you as committing the plagiarism if a layperson can tell that your painting and the photo look similar. This is the "ordinary observer test".
Make substantial changes to the image you paint. Courts evaluate the viability of a plagiarism case on how much an artist expropriates the "elements of originality" from another person's source photograph. These include lighting, angle, composition, the pose of the image's subjects, and the expressions of the subjects among many other variables present in the creative work.
Obtain permission from the photographer to use the image. If an image has a copyright, contact the holder of the copyright to see if they will allow you to use the image as a source for your painting. This will likely involve sending a brief, polite email to the photographer. If she says yes, she may request a fee, or request you sign a contract which outlines how she will allow you to use the image. If you sign a contract, make sure to follow its terms so as not to incur the legal consequences for breach of contract.
Attribute the photographer on your painting. Sometimes a copyright owner may only require you attribute them, meaning a photographer may ask that you include her name somewhere on the final work of art you produce since the subject of her photograph forms the foundation of your painting. The name of the person must be immediately visible to the viewer either on the placard explaining your work, or on the painting itself.
Use public domain images. Some photographers put their photographs up on stock image databases and may not have a copyright. Even if it appears there is no copyright, contact the photographer anyway to see if she will allow you to use her image as source for your painting. To be safe, attribute the photographer in your final work.
Tips & Warnings
- Copyright infringement can result in fines if a photographer pursues litigation against you.
- Photo Credit Brand X Pictures/Brand X Pictures/Getty Images