Leo Martínez
Copyright is a complex issue, and it can be tricky to navigate what is and isn't allowed. In terms of creating a painting based on a photograph, there are a few things to consider. Firstly, photographs are automatically copyrighted as soon as they are taken, and the photographer is usually the copyright owner. This means that you need permission from the photographer to paint from their photo, as creating a derivative work without permission is copyright infringement. However, if the photo is of a generic subject or public location, or you are using it for educational purposes, you are unlikely to be violating copyright law. When copying another artist's work, it is important to make it clear that it is a copy, and you can do this by signing the front and back with After [original artist's name]. You can also add your name, for example, After Dali by [Your Name]. It is important to remember that a copy of a copyrighted piece cannot be copyrighted, and you should always be aware of the copyright laws in your country.
| Characteristics | Values |
|---|---|
| Copyright owner | The author of the visual or graphic art is usually the initial copyright owner. An exception is when the art is created as a "work made for hire", in which case the employer or commissioning party owns the copyright. |
| Copyright duration | Copyright is typically valid for 70-100 years following the death of the artist, depending on the country. |
| Derivative work | A painting made from a photograph is a derivative work and requires permission from the copyright holder. |
| Fair use | Fair use allows copying portions of a work for educational purposes, satire/comedy, commentary, and other specific instances. However, copying an entire work is rarely considered fair use. |
| Signing a reproduction | When reproducing another artist's work, it is essential to indicate that it is a copy. The recommended signing format is "After [Original Artist]" or "Copied after [Original Artist]," followed by the copier's name. |
| Avoiding copyright infringement | To avoid copyright infringement, use your own photographs or reference photos from sources that provide free image material for creative use. |
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What You'll Learn
Derivative works and copyright infringement
A painting made from a photograph is a derivative work. Due to the Berne Convention for the Protection of Literary and Artistic Works, creative works are automatically copyrighted as soon as they are "in fixed form". This means that photographs are copyrighted as soon as the picture is taken. The creator of the photograph, i.e., the photographer, usually holds the copyright to the photo, and unless they've expressly given permission for its use, making a painting based on a photo would infringe the photographer's copyright.
To avoid copyright infringement issues when painting from photos, it is advisable to take your own photos. Alternatively, you can use Artist's Reference Photos from websites like Morgue File, which provides "free image reference material for use in all creative pursuits". If you are using a photo library, you can buy the right to use it.
Derivative works can also be created from works in the public domain or with the permission of the copyright owner. To receive copyright protection, a derivative work must add a sufficient amount of change to the original work. This distinction varies based on the type of work. For some works, just translating the work into another language will suffice, while others may require a new medium. Overall, one cannot simply change a few words in a written work, for example, to create a derivative work; one must substantially change the content of the work.
When copying another artist's work, it is important to let it be known that it is a copy. You can sign the front (and possibly also the back) with "After Dali" or "Copied after Dali," followed by your name. For example, "After Dali by [Your Name]."
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Obtaining permission from the copyright holder
Identify the Copyright Owner
Begin by identifying the copyright owner of the photo. This could be the photographer, artist, publisher, or their respective estates. In some cases, copyright ownership may have changed hands over time, so thorough research is essential. For instance, photographic reproduction rights are often owned by stock photo organizations, while music performance rights are associated with performing rights societies.
Determine Permission Requirements
Before reaching out, determine the extent of the rights you require. Are you seeking permission to reproduce the photo as a painting, or do you plan to sell or display the painting commercially? Outline your intended use and the scope of rights needed.
Contact the Copyright Owner
Once you have identified the copyright owner, contact them directly. You can send a letter, email, or use the contact information provided on their website. Be specific about your intended use of the photo and the rights you are requesting. Remember that the copyright owner may require payment for the permission granted, so be prepared to negotiate any fees or royalties.
Get Permission in Writing
After reaching an agreement with the copyright owner, ensure you get written permission. This can be in the form of a letter, email, or a more formal document, such as a licensing agreement. Having written permission protects you from any potential copyright infringement claims and ensures that you have the legal right to use the copyrighted photo as a reference for your painting.
Alternative Options
If you cannot obtain permission from the copyright holder, consider modifying your plans. You may need to use less of the material or explore alternative images. Additionally, you can utilize collective copyright licensing agencies that can facilitate the process of requesting permissions and acquiring rights, although these agencies typically charge a fee for their services.
Remember, obtaining permission from the copyright holder is a critical step to respect the original creator's rights and avoid legal complications. Taking the time to secure permission ensures that you can confidently proceed with your artistic endeavours while adhering to copyright laws.
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Signing a reproduction
When signing a reproduction of a copyrighted photo, it is important to ensure that you do not infringe on the original artist's rights and that you give them proper credit. Here are some guidelines to follow when signing such a painting:
Obtaining Permission:
Before creating a reproduction, it is essential to obtain permission from the copyright holder. The creator of the photograph usually holds the copyright and has the exclusive right to authorise derivative works. Contact the photographer or relevant copyright owner to seek permission and discuss any requirements or restrictions they may have.
Disclosing It's a Copy:
When signing the reproduction, clearly indicate that it is a copy. You can sign the front and/or back with a phrase like "After Dali" or "Copied after Dali," followed by your name, for example, "After Dali by Your Name." This transparency ensures that viewers recognise the original artist's contribution and prevents any potential copyright infringement claims.
Including Copyright Information:
In addition to disclosing that it is a copy, provide relevant copyright information. Include the name of the original work and its copyright date. For example, "Licensed copy of [Name of Original Work] by [Original Artist], [Copyright Year]." This practice adheres to US copyright law and respects the rights of the original copyright holder.
Signature Placement and Medium:
The placement of your signature on the reproduction is generally up to you as the artist, as long as it does not distract from the artwork. Signatures are commonly placed on the front bottom right corner or, if space permits, below the image area. If the artwork extends to the edge, you can sign the back instead. Avoid using a ballpoint pen or Sharpie, as these can bleed over time. Instead, use a pencil or an acid-free, archival-rated paint pen to ensure the longevity of your signature.
Numbering and Edition Information:
If you are creating multiple reproductions or prints, consider including edition information. Number each reproduction in the bottom left corner, indicating the size of the edition and the unique number assigned to that particular print. For example, the first print would be numbered 1/25, the second 2/25, and so on. This process guarantees that each print is identical in quality and that only the specified number exists.
Remember, the guidelines provided apply specifically to the context of signing a reproduction of a copyrighted photo. Always respect the original artist's rights and give them proper credit. By following these steps, you can ensure that your reproduction is signed appropriately and in accordance with copyright laws.
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Copyright duration
The duration of a copyright depends on several factors, including the date of creation and whether the work has been published. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. After this period, the work becomes part of the public domain, and anyone can use it without requiring permission from the author.
For anonymous works, pseudonymous works, or works made for hire, the copyright term is 95 years from the year of first publication or 120 years from the creation date, whichever comes first. For works published or registered before January 1, 1978, renewal registration is optional after 28 years, and certain legal advantages come with it.
Copyright protection is automatic in many countries, including the United States, upon the creation of an original work fixed in a tangible medium of expression. This means that as soon as an artist creates an original work, they hold the exclusive right to reproduce, distribute, publicly display, or create derivative works based on it for the duration of the copyright term.
It's important to note that ideas or concepts alone cannot be copyrighted; it is the expression of those ideas that are protected. Additionally, purely factual information or data that lacks creativity is generally not eligible for copyright protection.
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Fair use exceptions
Copyrighted photos are protected by law, and using them without permission can lead to legal consequences. However, there are fair use exceptions that allow limited and reasonable use of copyrighted material. Fair use is a legal exception that aims to balance the protection of the creator's rights with the promotion of the public interest. Here are some important points to understand about fair use exceptions:
- Purpose of Use: Fair use often applies when using copyrighted images for specific purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. For example, academics can use copyrighted images under fair use for educational or scholarly purposes with a limited audience.
- Transformative Work: If you create a transformative work that incorporates the copyrighted image, you may find an exception to infringement. This means that your new work no longer resembles the original image. However, fair use seldom applies when copying an entire creation.
- Commercial vs Non-Commercial Use: Fair use is more likely to apply in non-commercial contexts. If you use an image for personal or commercial reasons, you will likely need permission or pay to use it.
- Effect on Market: Consider the potential impact of your use on the market value of the copyrighted work. If your use interferes with the owner's rights or their ability to profit from their work, it is less likely to be considered fair use.
- International Agreements: International agreements like the Berne Convention provide automatic copyright protection for creative works as soon as they are "in fixed form." This means that photographs are copyrighted from the moment they are taken.
- Public Domain: Works that are in the public domain are not subject to copyright restrictions. This includes images created by individuals who died over 70 years ago, or books printed before 1923.
- Educational Use: Fair use often applies to educational contexts, allowing teachers and students to use copyrighted materials for classroom purposes without seeking permission.
- Attribution: Even if your use falls under fair use, it is good practice to provide attribution to the original creator.
It is important to remember that fair use is a complex and sometimes ambiguous concept. Each case is unique, and it is always best to seek legal counsel if you are unsure about your use of copyrighted material.
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Frequently asked questions
Yes, but you need to check the copyright situation of the photo. The photographer usually holds the copyright to the photo and unless they've expressly given permission for its use, making a painting based on a photo would infringe the photographer's copyright.
Due to the Berne Convention for the Protection of Literary and Artistic Works, an international copyright agreement, creative works are automatically copyrighted as soon as they are "in fixed form". This means that photographs are copyrighted as soon as the picture is taken.
You may be able to obtain permission to use a photo for a derivative work from the photographer, or if you're using a photo library, buy the right to use it.
When copying another artist’s work, you should let it be known that it is a copy. You can sign the front (and possibly also the back) with “After Dali” or “Copied after Dali.” You could also add your own name after, for example, “After Dali by [Your Name]”.
Copyright is 70-100 years following the death of the artist, depending on the country. Above this, selling an exact copy is considered forgery. You can sell your painting of a copyrighted photo as long as you have obtained the proper permissions and signed the work appropriately.
