Jessica Crabtree

Even artists who paint or draw from their own imaginations sometimes need to use photos for reference. (I keep a big shoebox full of photos, magazine clippings, etc. that I look through to get ideas for my paintings and to help me with fine details of perspective and color.) Unfortunately many people copy a painting or photo they saw in a book or magazine, believing they are free to sell it – unaware that they are infringing copyright law. So how far are you allowed to use other people’s materials?

Intellectual Copyright

All created works – a painting, a photograph, an essay, or a poem – are covered by intellectual copyright. This is basically a legal term of ethics, entitling people to the rights of their own creations. If you create an original work, it belongs to you, and any modification and/or sale of it outside of your permission is considered illegal (regardless of whether it bears a © copyright symbol).This applies likewise to the works of others. If it’s there and you see it, someone had to create it – which means they hold the rights to it. (There are a few important exceptions to this rule.)

When using other artworks or photographs for reference – even if you don’t know who the artist is – there’s a rule of thumb that your artwork has to be changed from the reference work by at least 30% (i.e., beyond easy recognition). If it contains a particularly unique or unusual concept, your margin of use will be much narrower, while a very general subject can’t help but resemble its reference in many ways.

For example: let’s say I want to paint a cardinal. Most cardinals look pretty much alike (all the cardinals I’ve seen are red, a few inches high, and feathered).

• NOT ALLOWED: I find a copyrighted photo of a cardinal on a greeting card. I copy it exactly in my own medium, sign my name to it, and put it up for sale.
• NOT ALLOWED: I find an unusual shot of a cardinal on a professional photographer’s online gallery. I really like it and so I decide to paint it. Everything in my painting is identical except that I make the background a different color. I sell it as my own original work.
• ALLOWED: I use three or four reference shots – one from an encyclopedia, another from a birdwatcher’s manual, a magazine, etc. – to make sure my cardinal has overall good proportions and accurate details, but the composition is my own. The backdrop/props I paint from my head, or use a totally different set of reference photos. The final artwork is completely mine and I am allowed to do pretty much anything I want with it.

Bottom line: unless you can document that the picture is in public domain – or unless you have the express written permission of its owner – DON’T copy it. Be fair and use it as a rough guide only. In most cases you’ll just have to use your own judgment and do some research. It’s a little more work this way, but you may find it’s better off for your creativity in the long run.

Coming up in Part 2: What’s Public Domain?