I see some artists using celebrity photos as a base for their art. David Bowie as example. Are there so many doing it that they are not worried about getting caught?
The way I under stand it, celebrities are public figures and as such can be photographed without their consent. That is why photographers are always around them.
The photograph they take then is copyrighted to the photographer or studio. the problem is in the reference you use to make the painting.
If you go to a rock concert and take a photo, you have the copyright to that photo and you can use it as a reference. If the person next to you takes a photo, you need their permission to use it.
Hope this is not too confusing.
I am not a legal expert so do not use my advice in any legal action.
Ken
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I’m not a legal expert either but I seems I’ve heard once that if your not mass producing images and making a ton of money from their image, your ok. I don’t think a celeb is going to hunt you down because your selling an original painting/drawing of their face.
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A long time ago, I was airbrushing t-shirts at an indoor mall and I got a lot of people asking for famous cartoon characters…especially the Tasmanian Devil. So I did a few of them sporatically but then I called Warner Bros. to see what I need to do that and the lady there told me that I need to purchase a licence and at the time it was $4,000. She said that it was mainly for people mass producing…like screen printing or something like that.
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If you do a good job it may be to buy it from you.
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Tess,
In part it depends on how much or how little the original photo was transformed during the process of painting. If it’s sufficiently “transformative”, it’s not a problem.
Also, as Bob mentioned, competition is a factor. Is a one-off oil painting of a rock star going to hurt the market for the original photo, hampering the photographer’s opportunity to profit from it? Probably not.
Wikipedia has a good article about art appropriation and copyright Link.
P.S. - R.I.P. David Bowie…
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My personal feeling is that it is a bad idea to use any photo for reference that you did not take yourself. It’s just not ethical. Imagine this: you have posted a recent painting to FB only to discover that it was copied then signed by another artist and sold as an original. That would probably make you unhappy. The principal is the same, in my opinion. Whether or not the photographer finds that their photograph was used or not is just beside the point, from an ethical standpoint. Reference material in the public domain is the exception.
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It’s a slippery slope, though. If we start condemning an artist for transforming a celebrity photo into a painting, then we might have to also condemn those still-life realists who paint board games and candy wrappers and Smurf figurines, because all of that imagery was created, copyrighted, and trademarked by other artists/corporations.
Since the courts are okay with sufficiently transformative art, then I wouldn’t pay it too much mind.
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Bob Kimball is right.
The person that took the picture owns the publishing rights… if he/she didn’t sell them to anyone else. There are companies that live of selling publishing rights (eg Getty Images).
I once had the permission from a photographer to use his picture as a reference. Luckily, he mentioned that he sold the publishing rights of the image to Getty Images. When I wrote that company an email to see if I can publish my study on my home page, they said I couldn’t do that unless I paid a licence fee (400USD per year). They also said this licence aplies to any of their pictures AND any derivatives. A painting of one of their pictures falls under that latter category.
In the same reply, they also mentioned that they have software searching through the internet and if they find any violators, they procecute them requesting up to 150.000USD per image.
Now that wasn’t very tactful of them, but it helped. I didn’t publish the image of my painting.
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David.
When the law describes a derivative work as “a work, fixed in tangible medium that includes elements of an original, previously copyright-protected work”, at what point has it been transformed enough to not be including elements of the original? When exactly is that line crossed?
That’s where the law can be interpreted.
Exacty. And different courts have come to different conclusions, which is fascinating.
What I was originally trying to get the answer to, though, is why do some artists here get nervous when the “elements of an original” are from a reference such as a photo of David Bowie – the photo copyrighted by the photographer, Bowie’s image owned by himself/now his estate – but they they don’t hold the same reservations when it comes to painting other copyrighted/trademarked material, e.g. the aforementioned candy wrappers, cartoon figurines, board games, etc.
Personally, I wouldn’t worry about any of it, because I’m fairly certain it falls into the category of “transformative” as defined by the courts, using the four point test often employed… But if one does take issue with it, I would think one would take issue with all of it.
Of course, I think the best course of action is to think less about all of this and just paint, paint, paint. And paint some more.