Jessica Crabtree

This isn’t exactly an art tip – but it’s useful for photographers, researchers, or even artists like me who use a lot of reference photos. (Really I’m a pack rat for good photos and I almost never delete them once I save a copy.) If you’re using a photo from the internet as a reference for an artwork, you of course need to pay attention to the rights status of the work, and always contact the creator for permission if in doubt. But what happens to that stash of saved pictures stored on your PC?

An easy way to keep track of the photo’s source once you’ve saved a copy is to use the “Details” fields in photo properties. This will allow you to enter an author, date, and other pertinent information, so you will never be in doubt months down the line, wondering where you got that photo, left trying to track it down to find the author. I make a habit of copy + pasting the source URL in the photo’s “Description” when I save it, so as long as the original is still online I can visit the source for information.

One great thing about this is that the information will stick to the photo wherever it goes – whether it stays in “My Photos” folder, or whether I share it on my Blog. Just be sure to enter the info as soon as you download it – that way you won’t have to remember later.

These days there are lots of photo resources available in the public domain, and also with various Creative Commons licenses that are free to use with certain stipulations, such as author credits. If you decide to store these pieces for later reference, it’s a good idea to sort them – e.g., keep a “Public Domain” folder, a separate “Creative Commons” folder, and one for protected pieces you have permission to use.

Please remember to respect the rights of other artists in using their works, whether online or otherwise. Attribute photographic works wherever possible to help ensure continuity of information.

See more info on public domain works and intellectual property rights in my post series Artists and Copyright Law.

Model Releases

If you paint a portrait of a live model, or from a photo you’ve taken of someone, it’s important to get the person’s permission in a model release. This just needs to be a simple document signed by the model that states clearly that he or she approves having their likeness used by the artist in a painting. This gives legal clearance to the artist to sell and reproduce that painting. It’s worth having for the record because it’s legally binding and more concrete than a verbal agreement, and it’s flexible enough to be customized to your particular situation. A model release is especially important if the subject is underage, in which case you should have a release from a parent or guardian.

Along these lines it’s worth noting that the likenesses of deceased individuals and historical figures are not necessarily fair game for artists. While in most cases the face of a famous person long dead is more or less public domain (e.g., Abraham Lincoln or Napoleon), many celebrities and other cultural icons actually have ongoing legal restrictions through their estates that restrict or require permission for the use of their images. No one is quite sure where this line exists legally, but the artist should still be aware of these issues and be prepared to do some research ahead of time.

Today there’s an ocean of photo material available on the internet through open image searches. Some of it is deliberately posted as multi-purpose content, while much of it is gleaned from personal websites by search engines such as Google Images or Bing. In response, there’s a new breed of legal classification for visual/photo art designed to help specify the legal status of a work. A photographer can designate his work under a rights-managed license to specify exactly how much or how little restriction he wishes to place on the use of his photos. This is much more flexible than copyright but is still legally binding. The licenses range in strictness from the traditional “All Rights Reserved” to completely unrestricted “Public Domain.”

The most frequent rights-managed licenses are known as Creative Commons licenses. Most of the photos you see on Flickr or Wikipedia, for example, will be under this kind of license. Anyone who accesses a work under a Creative Commons license can easily find out exactly what level of use is permitted by its author. So if a photographer submits a photo on the web for completely unrestricted use, he licenses it as public domain. If he wants to be given credit in any future use of his photos, he can license it under a Creative Commons Attribution license. He may choose a license which allows any use of his photos except commercial or resale, or a Non-Derivative license, which grants free use but stipulates that the image be unaltered.

Some basic info on Creative Commons licenses:

http://creativecommons.org/about/licenses

See also:

http://en.wikipedia.org/wiki/Copyleft

What’s “royalty-free”?

Artists searching for reference material on the internet run across many collections listed as “free photos” or “royalty-free” – but this can be something of a catch-22. These terms are NOT equivalent to public domain (i.e., unrestricted use). Generally, royalty-free just means that you don’t have to pay a leasing fee for using the photo, and that intellectual copyright still applies. This is to differentiate them from websites that actually sell stock photos under varying usage licenses. Most free-photo sites will have disclaimers saying that their photos are “100% free” to download, but are restricted to personal or educational uses only. Granted, this is fair, but it’s easy to be misled by thinking that “free” is an all-encompassing term. Check the source to find out just what is meant by “free.”

If you intend to draw heavily on any kind of visual reference material for commercial art (that is, art you intend to sell) make sure to do the research to confirm that it is public domain, or get the owner’s permission.

Next: Rights-Managed and Creative Commons

Public domain is the term for media that is totally free for the public to use. If you’re an artist looking for a reference photo to model a painting after, these are the words you want to see.

Previously I said that practically all works are protected by intellectual copyright – and that’s true, but there are a few exceptions. For example:

1. Copyright does not apply to works before 1921. The concept of legal copyright just didn’t exist then. This generally applies to historical photographs, prints in old books, etc. They are considered to be in the public domain – that is, public property.
2. Some works may be in the public domain if their copyright has lapsed (as in the case of the Edward Curtis collection).
3. The creator of the work actually releases his/her work into the public domain. This means they graciously give their work to the public without retaining any rights to it, and anybody can do with it what they wish.

Using pictures from the public domain, however, assumes that you don’t claim rights to the concept – saying you actually came up with the original. So you could sell a painting that includes an image of the Mona Lisa, but I wouldn’t try saying that you were the one who came up with the original idea.

Also, your work doesn’t affect the status of the original, so you can’t restrict others from using it as well. Therefore you can claim copyright only to your version of it. This can mean that any number of individuals may create a painting based on the exact same public domain image – provided they are using the image as their reference, and not each others’ paintings.

http://en.wikipedia.org/wiki/Public_domain

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?

With constantly changing laws and complicated terms, you almost have to be a copyright lawyer to be fluent with the plethora of rights and usage restrictions that apply to art-related media. Many artists don’t know how their works are protected under law or how these laws may apply to the creations of others. It’s important for the artist to be literate with basic copyright terms and to be conscientious of other artists’ rights.

I’ll be making a series of posts outlining some of the more commonly encountered copyright terms and their implications for the artist, along with links to helpful resources on the subject.