someone elses photograph

How often has this happened to you?

You are flipping through an art magazine, or a National Geographic, or looking on Flickr, and you come across a photograph that is so great that you can’t wait to pull out your pencils and spend a relaxing afternoon making art using that inspiring photograph.

Sound familiar?

Hold on a minute!   Put down that Prismacolor! Drop the Derwent!

Whose photograph is it?

I know, I know…why does it matter?  You’re just going to do a little sketching, and it’s such an inspiring photo, and who’s going to notice? All you are going to do is spend a nice afternoon doodling…

That’s fine. You certainly can use the photograph to practice.  It’s a perfect tool for that. Using a photograph lets you take as much time as you need because you don’t have to be concerned with a model moving or growing tired.  You don’t have to worry about a still life set-up being eaten by folks who might stop by to watch you draw.

Here’s the deal…

What if all your hard work practicing making art all comes together in this one piece of art?   The shadows are just right, the perspective is spot on, the orange looks like an orange. You are so proud of it, and rightly so. It’s a real work of art!

Your result is so grand that you want to show it at the next gallery show, and maybe make and sell some prints of  it to kick off your art career. Your drawing is a winner and you know it. You can almost see the red “sold” dots at the gallery, and hear the cha-ching of the money rolling in…

Wait a minute. Go back to the question, “Whose photograph is it?”

I don’t want to say this, but better you hear it from me than from the copyright lawyer that represents the photographer, or the artist whose winning painting in the arts magazine you used for practice.

Here’s my little warning lecture, and then you can get back to your drawing…

If you make a great piece of art from someone elses photograph, without permission, you can’t ever sell it.  Period.  Really.

And you can’t display it as yours.

And you don’t want to risk selling it or displaying it in the hope that you won’t get caught. Caught happens.

It doesn’t matter that you drew the piece of art. You did not take the photo. You would be “infringing the copyrights” of the photographer. That sounds so technical, but think of “infringing” to be exactly like you opening that photographers wallet and taking out a few bucks without him knowing.

Be warned… if you were to take one of my photographs, draw a picture of it or from it, without getting my express permission to use it for your own personal gain, or to sell in your online store, or display it at an art show,  I would have to hunt you down with my lawyer in tow (he’s got a cute little briefcase full of documents, and he wears a bowtie) and extract my money from your wallet.

You could of course ask permission from me, the photographer. You might get a “yes”, and if you were serious about wanting to reproduce and sell the art you make from the photograph, you and the photographer could reach an agreement about you paying him a flat fee for use, or a percentage of sales for the privilege. That would be called a licensing agreement.

Can you never use a photograph to draw from? Are you destined to have to worry about the model having an itchy nose, or the apple being too tempting?

Not  at all.  Here is what you can do…

Buy a camera, and take your own pictures!  Then you can use your own photographs to make works of art to your ‘arts content.

And you won’t ever have to meet my guy with the bowtie.

Leslie

Copyright Act of 1976

Harvard Law School

Rogers vs Koons

25 thoughts on “someone elses photograph

  1. Wolf

    Hey if I draw a picture from another picture, like I find a picture of the hulk on the internet and I use the shape of his body and make him a different character and give him other clothes thus making a new character just doing the same actions, is this against copyright laws and I only use the body not the backround non of the props just the sshape of the hulks body.

  2. leslie Post author

    Hi Sarah…to answer your question, “Do I need to go back and find each photographer and ask copyright permission?”, in a word, YES.

    The original photographer of every photo, or artist making an original artwork, has the right, the copyright, to allow or not allow your use of his or her photo. They have the right, granted under the Copyright Act of 1976, http://en.wikipedia.org/wiki/Copyright_Act_of_1976 to decide how that photo or artwork is used. You have to ask permission.

    It is so much better to do research and ask permission BEFORE starting a project like your wonderful idea, and putting so much effort into it, only to have the owners of the copyright refuse to allow use AFTER you have printed the calendar.
    If you can’t locate the owner of the copyright of a photo you want to use, then you can’t use the photo. Just because you can’t find them does not mean the photo is available for you to use.

  3. Sarah

    Hi, here is my situation, I’d love your thoughts…
    I like to sketch. I recently did a dozen or so sketches of people’s faces from around the world, only faces, and added their country’s outline behind them. Now, I would love to put them together in a calendar to raise awareness about human trafficking and give all money to a charity that fights this. Do I need to go back and find each photographer and ask copyright permission? Even though I only used a small portion of the picture, added to it, and wouldn’t be making any money from it? Would it be enough to give them credit in the calendar? some of the photos are on govt. websites that don’t give the photographer info…what do I do about that?

    What do you think?

  4. leslie

    Hi Rebecca…It can be a lifelong project to educate people to copyrights :) I feel your ‘pet peeve’ pain :) If someone blatantly copies another’s art, and sells it as their own, it is grounds for legal action.

  5. Rebecca Hadley

    I was JUST having this discussion with someone because of all of the copied photographs that I’ve been seeing on http://www.DeviantArt.com. Using someone else’s photograph as reference is fine. However, the end result should look nothing like that person’s original photo. If you are copying someone’s piece as a drawing or painting exercise, it shouldn’t be placed on an art website as if it’s your own work. This is quickly becoming my new pet peeve. lol

  6. leslie Post author

    Hi Sarah…If I understand your question correctly, the answer is YES. Do NOT copy another artists artwork.

    As an example…the moment I draw something original, I become the owner of all rights, or privileges, to sell that artwork, make copies of that original artwork, sell the rights to copy to someone else, and to make an income from the artwork.
    If you decided to re-draw my original, and sell it, that would be “copyright infringement”, which is a legal way of saying “stealing”. Unless I give you written permission, a contract, to reproduce my art, you can’t do it. It’s against the law.

    If you want to sell botanical drawings, go outside, find some plants that appeal to you, and draw them. Not only will you gain some really great original drawings, but you will also automatically have all the copyrights to your original work.
    Then you could sue the pants off me if I decided to copy your art and sell it!

  7. Sarah

    I assume the same goes for a drawing someone else did? I have these botanical sketches that I would love to draw and sell but I’m guessing that too is copyright infringement? Thanks.

  8. leslie Post author

    Hi Anna…All good questions, and I would feel very unsure giving answers. I would have to suggest doing a search on your favorite browser for that specific information.
    In my experience, payments are always what two parties will agree to. Educate yourself to what are the industry standards, and go from there.
    Best wishes~

  9. Anna

    Hello guys this was very useful explanation.
    I have 1 question.
    I’m a model and I got email from this guy asking me to pay me for my permission for drawing my picture that i done during TFCD session. So he probably need to contact photographer to ask for his permission also right? And since i found costumer I can ask some percent of money from contract? how much?

  10. Vicki in Michigan

    “Another reason I love my digital camera…it’s an inexpensive way to get tons of my own copyright free reference photos.”

    Indeed! You KNOW it’s ok to use ‘em.

    Thinking about people’s disregard of copyright ……. suspecting that it’s the ease of making copies of things that leads to abuse of copyright, rather than tv per se. That plus the anonymity.

    You *can* record a tv program, take a copy of someone’s web image or music cd, or, or, or. And as the quality of the copies has improved over the years, your copy has become identical to the original (thinking of the results of early xerox copies, or of early videotaping-from-tv … it’s a whole new world now!).

    I think that the ease (and anonymity) of acquiring a perfect copy of [whatever] is what leads to the misbehavior. Trivial to do AND the chance of getting caught is small……… The fact that it’s just WRONG gets lost, I think.

    Also thinking of being told that we couldn’t take pics of middle-school kids in their drama performance as the costumes and makeup were copywritten. Hmmmm. True, no doubt, but good grief. Like someone needed a photo graph to reproduce stuff that got sent from home, mostly, as a costume, and an eye-brow-pencil moustache????????????????

  11. leslie

    LOL at what you said about “copyright free” flowers. You’re right!
    Another reason I love my digital camera…it’s an inexpensive way to get tons of my own copyright free reference photos.

    I believe that it has becoming more difficult for people, in general, to understand copyright, since the advent of television.

    TV makes totally invented characters and scenarios, and sets them in tangible pictures, quite like what a painter would do… invent a character and/or scenario and set them in a tangible form.
    The difference being, IMHO, that the public, viewing a TV, is removed simply by the fantastical nature of TV from the idea that what they are seeing is ART.
    I don’t think people consciously think, “A scriptwriter wrote the words they are saying, a set director designed the room they are in, a costume maker made the clothes…(I do, but then I’m weird like that)

    I think there has been a huge disconnect between what people generally think of as ART, and what ART fully encompasses.

    Enter the internet, and the waters are further muddied.

    So I say… more funding for ART education!!!! :)

  12. Vicki in Michigan

    One more thought — when one takes a pic of current art (as opposed to 300-yr-old art, say), there is the issue of the copyright on the original, as well as the copyright on the photograph……………

    Thank goodness for flowers! When I walk home, I am certain that all those flowers are copyright free! So I can be sure that my own images are ok to use however I’d like!

  13. Vicki in Michigan

    Of course it’s just Wrong to take and use someone else’s work for one’s own profit without permission, laws, or no laws…….

    One hears so many instances of people using someone else’s exact photo for their own gain — hard to imagine those thieves are thoughtfully reading this post. Alas. All my pics are shrunk and degraded before publication on the web, which, I hope, protects them from outright thievery. I boggle at people who claim that because they *can* take something, it is ok. If you walk by someone’s desk at work, is it ok to take something you admire? You can. Is it ok? I bet the same people would say it isn’t……….. Perhaps it’s the same sort of thinking that results in people saying that things that happen on the internet aren’t real. (??????????? Tell that to the hundreds of dogs helped by CorgiAid — http://corgiaid.org — an org conceived, incorporated, and run totally on the web for almost 10 years………………) If things on the web aren’t quite real (in the minds of some), perhaps that’s why it’s “ok” to steal them…………….. “Only digital; it’s not real in the way a hardcopy object is real….” ???

    I would be very open to discussion with someone who wanted to make art derived from my work. I would be much less bothered by someone using my image as a reference for a drawing or painting than if they used my actual image (or a digital copy thereof…..), even without my permission.

    As to National Geo — I have dozens (and dozens)of artist trading cards that I’ve made from tight crops of Nat Geo images. I believe it would be Wrong to trade them, even, let alone sell the images, so I just keep them in a binder and admire them, from time to time…… (Not that I’m sure I would want to part with them anyway……..) Some mighty fine images in Nat Geo………….. :-)

  14. leslie

    Hi Carolina,
    Nice to have you visit here!
    I hope this takes one aspect of copyrights and makes it a bit clearer for artists. Many artists hesitate to make art from a photo because they can’t untangle the information, and don’t want to do something wrong.
    Copyright is like “added value” to any creative work.

  15. leslie

    Hi Jonathan,
    I love good questions!!
    It would depend, I guess, on the subject matter of the photograph. Say for instance, if the person making the sculpture of the people holding the puppies “recreated’ the scene, took their own picture and then sculpted it, it would, in my estimation, be infringement.
    If you “recreated” a shot of the Statue of Liberty or a view of the Grand Canyon, then painted it, not an infringement.
    I am unfamiliar enough with the Ice vs. Bowie situation, so can’t use it as an analogy.
    As artists, or writers, or makers of creative work, copyrights are our friends. Assume they are of great value to you, and therefore of great value to others who create.
    (ps your comment got held in moderation and I didn’t see it right away.Sorry for the delay)

  16. leslie

    Hi Jo,
    I have a great National Geographic Tiger drawng! :) Actually, I have TWO of the exact same Tiger photo, each one on a different color paper.
    They are in the “Salon de Refuse” drawer of my paper file.

    It would be fun to interview a National Geographic photographer and ask them how they feel about seeing their work copied by people learning to be artists.

  17. Jo Castillo

    Right on. If I could take better photos, I would have better paintings! Joking, but you are right about using other people’s photos. I did a painting many years ago when I was just starting to try to sell my work. It was a scene from several photos, just a piece of several. I still worry about that painting. I don’t feel it was mine at all, but it is out there somewhere. Maybe no one else will notice … you never know, but I know. So after that I use my own photos. :) Thanks for spreading the word.

  18. Jonathan

    The next question is, “What about recreating the photograph?” If you are so inspired by a photograph that you want to paint it, and you go out and create an ALMOST exact duplicate of it to photograph, isn’t that still a copyright infringement? Or would that be different than the situation between Vanilla Ice and Ice, Ice Baby Vs. David Bowie with Under Pressure. Copyrights are strange little beasties.

  19. leslie Post author

    I added a link to a really good explanation of copyrights at the end of the post.
    And you are correct…just because it’s on the internet does NOT mean it’s free to use.
    If ever you need something changed in a comment (link to your site, etc., just let me know what you need. I can ‘fix’ it :) )

  20. Jennifer Rose

    yeah you have to be careful with stock photos. some say that it is all right to use and profit from, others state conditions. If I am ever in doubt I ask and on the whole most people are fine with just credit back and a print. if they so no, I still thank them and compliment the photo
    I think with copyright laws being so different in different countries that is where the problems happen :/ laws here are different from there and so forth.
    I am not completely up on copyright and could stand to learn more actually lol but people just assume that if its online its free to use and will argue till they are blue in the face because they think they are right

    *i just noticed I used the wrong link for my website oops :p lol*

  21. leslie

    I already got an email from someone asking about the use of someone elses photo’s for the Virtual Sketch Date art the group does.
    When I offerd my “Sunquats” photo to the group, I offered it as “copyright free”, so that artists could make a piece of art that they could then sell if they so desired.
    I do not know about the other reference photos. Anybody?

  22. leslie

    Hi Jennifer,
    I use other people’s photos as reference all the time, i.e., the gait of a horse, the color of a bird, the shape of a common object.

    You make my point when you say, “…if I do use photos I then kick myself when the drawing turns out really nice.”
    I have a drawer full of really nice drawings that I can never present as my own because they are exact copies of National Geographic photos. :)

    The term “stock photos” can be confusing. Some “stock photos” are not copyright free. Wikipedia has a long explanation… http://en.wikipedia.org/wiki/Stock_photography

  23. Jennifer Rose

    I have no problem with people using photos to practice, but yeah once the issue of money comes in thats when problems start :/ I admit to using stock photos and even that I hate to do. You can never be too sure that its actually that person who has given permission for people to use the photos. I try to use my own photos as much as possible, try to take as many photos of the things I want to draw. If i need to get how for example the legs of a horse look when in a certain gait then I try to find pictures that are put online for that reason. I would say that about 90% of what I draw is either from my head or from photos I have took. The other I either change the photo (one that is online for stock purposes), to add my own touch to it.

    I don’t like using stock photos a lot as that means there is a huge chance that someone else (and possibly dozens of people) likes it just as much and will draw it. There are a lot of really nice pieces of art out there, but you know right away what photo the image was drawn from. If I am practising and if I do use photos I then kick myself when the drawing turns out really nice.

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