[fukifino]

I have a question about using copyrighted photos as reference material. Does anyone know any of the technicalities of this? Where does one draw the line between illegal reproduction of copyrighted materials and artistic interpretation in a legal sense?

I'm always on the lookout for interesting photos to use as references (because at this stage in the game, I need them...hopefully practice and schooling will help mitigate that), so I usually save anything I find as a ref. Right now I'm not doing anything other than studies with them, so for that use, I know I'm fine.

However, one study I did based on a photo turned out (or might if I manage to finish it) quite nice and I'm wondering where the line is drawn. My version was done as a lighting and color study, so those 2 are far removed from the original figure in the photo, but the basics are still very similar. It's not a photo likeness, but anyone familiar with the original image would obviously recognize mine.

Jason Manley mentioned several times he was going to make a post on this at CA, but I haven't seen anything yet.

So, any input is appreciated.

[Snakebyte]

It depends on whether or not you plan on profiting from it. Using a photo for reference is fine and dandy so long as the final picture is different than the original photo, basically, if it�s obvious that you used a copyrighted photo and you are trying to profit than I think you may have trouble.
However, I may be wrong. But your reputation as an original artist would likely be out the window in ether case.
Edit: This is, if you try to tell people that it is an original when it is not.

some here may call that "Mongoose'ism"
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Kevin Moore
www.darkesthorizons.com

[fukifino]

Well, I have no problem at all giving credit for the original reference. I don't see the point of trying to make people think I'm more creative than I am. Besides, if I liked the photo enough to use it in a picture, I obviously like the original photographer and I'd want people to go check his stuff out.

[AndyT]

Yeah this is something I'd like to know more about too.

For example if I want to post a ref and my version in the speedpainting thread ...
or for tutorials ...
are there resources of images that I may use for non commercial purposes?
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http://www.conceptworld.org

[Wren]

There is one very easy way to resolve the question.

Contact the photographer and ask if it's ok to base a drawing off his (or her) photo. If the photographer says yes, then you are in the clear as far as the law is concerned because you will have written permisison. if the photographer says no, then you will have to re-work the idea or plan not to display the final image (if it's that easily recognizable).
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SASart Studios

[Impaler]

That's a somewhat feasible solution for, say, work taken from National Geographic.

In this day of google images, however, tracking down the photographer becomes a much more dizzying ordeal. Even worse, most of the photographs you see nowadays aren't even the property of the photographer. Rather, companies will buy the rights to a picture, making further commercial use by a third party artist almost impossible.

If you're ever in doubt, then play it safe and find a different picture. Try using a stock photo archive like corbis.com
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QED, sort of.

[AliasMoze]

Derivative work is common and legal, depending on how close the piece is to the original work and how the original is used. It does not, despite the theory that seems to have stuck, matter if you're making a profit. A violation is a violation. The issue of profit would only become important in trying to calculate damage (to the original author).

fikifino, though I stop short of dispensing what action you should take (as I am not a lawyer), what you're doing sounds fine.

[mukkinese]

You should really design your image first, and then collect reference which will help you get the details right. This way you will find yourself combining several reference sources, and ( hopefully ) creating an original image of your own.

[MadSamoan]

Using someone else's photo without permission in for-profit work is a no-no. People get away with it alot if they've somehow managed to modify it enough to the point that people don't recognize it. If it's obvious where you got your reference from, you can be held liable financially by whoever owns the original image. Your best bet is to recreate the elements you liked in that reference and reshooting it yourself (if it were a person's pose for example).

[fukifino]

Thanks for all your opinions folks.

Getting the original artists permission if, of course, the best option in this case, as I know who it is. I guess I'm just afraid/sure he'll say no. I'll probably end up asking him anywyas.

But as Impaler mentioned, it's not always possible to find the original photographer.

mukkinese, I agree with you in general, but in this case it was the image that inspired the painting.

MadSamoan, if only I had access to the models he had. But I think you're missing the point...I"m not actually using his photograph. I used it as a reference for a painting (digital painting in this case). The pose is recognizable, but I'm pretty sure I didn't get a photolikeness of the models face, although certain other elements of the photo are still pretty obvious.

Either way, lots of conflicting opinions here, so I guess I best do some research myself on the issue.

Thanks folks.

[Wren]

[AliasMoze]

fukifino, there are indeed many conflicting statements in this thread, and, if I may say so, many misconceptions. PROFIT is not part of the equation. Permission from the artist may not be necessary.

http://www.copyright.gov/circs/circ14.html

Again, it all depends on how you're using the photo, and, without seeing both works, it's impossible to determine whether what you're doing is legal or not.
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The misconceptions come from various sources. One is that copyright holders often assume greater rights than they have. I've seen copyright notices on websites claiming that no derivative work is allowed, but the author is simply assuming what he does not have; no artist has the right to deny all derivative work. Another source of misconception is lawsuits filed by large copyright holders (corporations and/or wealthy artists). Someone may file a suit against you, even if you're well within the law. The suit does not make your action illegal, but corporations know that many people will simply fold in the light of an expensive legal battle. The idea that you must be making a profit to be illegal is common and completely wrong. The law is law, not morality, and, rest assured, if you violate a copyright, you could end up paying regardless of how much money you've made from it. The recording industry has filed suit against hundreds of violators who haven't profited one iota from the infringement.

[bearsclover]

This is a topic that has been on my mind lately, as it has been discussed elsewhere.

I do think that some copyright holders assume too much�assume that if you use a speck of their work they should sue the pants of of you. I remember reading somewhere (I think it was an article on Gigalaw.com, but I am not sure) about the use of watermarking technology to monitor and track web art. (Which sounds like a good idea, don't get me wrong. People are always ripping my art off of the web.) Anyway, this article went on to say that in some cases, the only way to prove that infrigement has occurred is through the watermark�the picture itself is so different that to the naked eye it is a no longer recognizable as a copy of the original work. (I am pretty sure I read that right�I think that's what the article was saying.)

What? I mean, HUH? If the "copied" work is so different that the only way to "prove" that there was any infringement is by a digital watermark, I can't see how any infringement existed in the first place. If you change something around so much that it completely becomes something different and no one, not even the original artist, can recognize it as a "copy," who is harmed?

I guess that's where I personally stand. There's a BIG difference between a spot-on copy and a work that has a few vague bits in them that were "inspired" by a photo they saw somewhere else. I see no harm in looking at a photo to get a pose right on a figure, for instance. If the costume, appearance, background, lighting, color, etc. are all different, then how is that a big deal that they got the idea for the pose from a photo? And how could the copyright holder of the photo with the pose prove that this other artist "stole" that pose anyway? These are the kind of questions that I have.

I also don't see any harm in a lot of "fan" art (like portraits from movies, etc.) as long as the copyright holders don't mind. (And many don't.) I love doing portraits and have done plenty of "fan art" in my day. But that's a whole different topic, since no one, I am sure, is hoping to claim that "fan" art is original.
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Madness takes its toll - please have exact change.

[fukifino]

Hmm..that's an interesting link, AliasMoze...here are 2 bits I found pertinent to the discussion at hand:

[AliasMoze]

It does, though, matter how you're using the work, and in reality, the courts decide what is ok and what isn't. A sculptor somewhat recently lost a case in which he made a 3D copy of a photo. But again, he was simply recreating the work in another medium, and the judge determined that what he was doing was illegal and worthy of his paying damages. The case was huge. Then again, what you're doing sounds legal to me. Again, without seeing the work, it's hard to say. You say yourself, though, that your use is interpretive.