Altering photos and creating new backdrops
 

Administrator's Note: Images were removed from this thread due to copyright issues.

With great interest have I read the debate going on about whether or not to use photos for one's work, and how to ensure proper lighting as weilluminate our subjects. I agree with all, because each has a pro and a con, but what is one to do when you want to recreate something you have seen in a magazine, movie or other source?
I love to create my own environments and tell a narrative and here is how I go about my work:

1. If I have a reference photo, I try to duplicate a certain aspect that has caught my attention.

Here: I wanted to use the same color scheme and keep the man in that pose.

2. I start by asking myself how I can use the image in an alternate setting and start by gathering resource material.

Here: I decided to make him into a fruit vendor and will try to dup licate the colors by introducing fruits that share the same hues.

3. I set out by gathering reference material to change the image as much as possible without loosing the gist of it.

Here: I looked through cookbooks, online and everywhere I could think of and found images of eggplants, grapes, pomegranates. The pumkins are a poor attempt from memory. For the ochre backdrop I could only think of bags of onions. The trick for me is to introduce all these elements but keep the color sense the same as in the originalreference photo.

4. Avoiding copyright problems.

Here: The background was changed, the old man received a different hat, his shoes have been changed. The man's hair will be black and he will be a bit younger by the time I am finished with him. He is pouring (? not decided yet) into a blue ceramic vessel.

I will appreciate any comments or suggestion you might have to pull this off. I work in the "Verdaccio" method, thanks to Mari and Michael, who finally helped me to put a title to the way I go about swishing around my paint!

Stage two of my painting
 

The underpainting was applied, although I got a bit impatient towards the end and started with my color application. The background will be toned down quiet a bit more. I hope you'll have as much fun critiquing as I have painting it.

Day 5 Work in Progress
 

This is day five and I am working along. I hope one of you shares your thoughts about any problems they see in the composition or anything else for that matter.

Edges
 

Enzie, I really like your reference photo. National Geographic is one of my favorites. Have you seen the photograph of the Afghan girl? This is a famous photoghraph, she is breathtaking and sad.

On your painting, I believe that you've done a beautiful job in creating a composite of images. But, like me, you need to take a closer look at edges. Your reference photo very clearly shows wonderful lost and found edges. Check the man's back in particular. By incorporating these in your painting you will make the man "live" in the fruit market instead of being pasted on. (same thing I did in David and Robert) The subject matter is strong, check out the thread on painting wood (for the fruit stand). I miss the "roughness" of the reference photo.

Keep going, I like this.

Jean

Jean, thank you for your pointers. I immediatly worked on the lost and found and hopefully it will look better.

Currently, I am fussing with the onions in the background and I am very dissatisfied with the pomegranates. Creating challenging compositions is great fun but they also drive me crazy at times, since I lack the skill to get it done asap.

My question to the forum members is: "How do you make the background read as what it is, without it taking over and demanding the attention of the viewer?"

(The fruit in the background is there to replicate the color scheme of the mustard/orange hues of cloth in the original photo.)

I have a comment about copyright issues. For more comments from readers about the painting itself you might want to post this in the critique section.

From the in-depth reading I have done about art copyright law, National Geographic would have a legitimate case that this painting infringes on their copyright.

The key issue in copyright law is whether a casual viewer (not necessarily an artist or photographer) would feel that this painting was "substantially similar" to the photograph you worked from. I think that, yes, it is.

Fine points that would affect a judge's ruling would be whether the portion of the photo that was copied made up a large percentage of the image area of the resulting painting. The answer is yes, in this case, also.

Another point would be whether the portion of the photo that was copied was central to the concept of the painting. The answer to that point is yes, also. The man is the main image of the painting.

If you ever sell, exhibit or publish this painting, I believe you would be raising a legal red flag, if anyone saw the image who cared about National Geographic's copyright legal rights.

To be on the safe side of copyright law we should only work from our own photos or use others' photos only when we have written permission to use the imagery.

Hope that helps!

The fine line of Copyright
 

Michele, I am so happy that you addressed this issue. I was hoping that eventually someone might comment exactly on the issue of copyright infringement after seeing how I dealt with creating the backdrop to change the original photo.

It has come to my attention that many artists work reflects certain aspects of other people's work, whether in pose, application of background, or even subject matter. I personally admit to collecting "props" from sources all over and incorporating them in my painting, as was the case with some of the fruit (sources: cookbook, images on the net, etc.).

I totally agree with all the points you have made, but there are times when I don't have the necessary things to create the environment I am after. This brings me to the painting at hand and the points you have brought up.

Let's say I would turn the man into a woman who wears a burka (long garment that covers a Middle Eastern woman from head to toe), with the burka being still the same color and the woman assuming the same stance, would I then be safe to call it my own creation?

Elements that have changed:
Background
Gender

Elements that are the same:
Colors - to a certain degree
Stance and action of main character

Some of you might wonder, why on earth I would want to go through all this trouble. I have lived in Iran and even as a child have been facinated by the mystic of the Middle East. I want to use memories of scenes I have witnessed or places that I still recall, in my work. I have a lot of Iranian friends who are my target audience for portraiture in that style. So you can see that I will have to create my own Middle Eastern environments to achieve my goal. That is also why I need to know exactly how much I can borrow from other sources to turn the work into my own creation.

I don't want to intentionally cross the "fine line of copyright infringement"; that's why I appreciate as much clarification of this matter as possible.

Critiques on technique are also welcomed!

There is no clear cut line as to what exactly constitutes copying that is "substantially similar", in copyright law.

The only way to find out for sure if you're in violation is in a court of law and by then it might be too late! Better safe than sorry, I feel.

Reference and copyright
 

Unless you intend to sell or publish this piece I would not worry about it.

As far as using clippings for reference or others' photos other than your own, if the work is for commercial gain, either as an illustration or as a gallery sale, then there is a simple solution. You pay the photographer or whoever owns the copyright to the original image. And many photographers even specialize in taking and selling reference photos for artists. Many wildlife photographers do this. Illustrators have been using other people's photos as reference for years.

You never know when you are going to have to do a illustration involving some far-off land and you certainly are not going to fly to China to take pictures of the Great Wall yourself for a $500-$1000 illustration commission. It is best to just use reference you can get the rights to. You also have to worry about using the likeness of a person as well if they have not signed a model release form - you can run the risk of being sued.

Also, it is not always the artist or photographer who has the repro rights, since publishers can and do buy full rights so that they can use and reuse the image any way they choose without having to pay the artist or photographer again. They can resell those rights.

Also, with photographers and artists that are under salary contract the employer may own all copyrights to their work as well. The short of it is that, if in doubt, contact the photographer or if you do not know the photographer, then the publisher and inquire about using the image or portion of the image as reference. Any fee you have to pay is billable in the case of illustrations; or in the case of gallery work, you make sure you cover your costs with the sale price. It is better to pay upfront than pay after.

As I mentioned, you have to worry about this even if you did take the photo yourself, if the person did not sign a release form, and your painting is published without their permission. You can be sued. Always make sure you are covered whenever you use reference, be it a photo or a model.

National Geographics Stock Image License Agreements
 

Michael, thank you for the great advice. I did know about Stock Art and you are absolutely right: better to pay up front, than deal with legal issues. In this case I am dealing with a ripped out page, which I had stored away in a file cabinet without giving any thought to make notations where it came from.

In the meanwhile, I have contacted National Geographic to see if they can find the photographer. I am really interested to see what the cost will be to use this man in the manner I have painted him and I will make sure to share that info with you all. By the way there is a great section for Artists who would like to use N.G.'s stock images under: http://www.nationalgeographic.com/ph...les/index.html

Who was it who said planning is essential in a previous thread? How well put. Just think, this is a piece I am doing for my own enjoyment. Just imagine if someone would want to purchase it after seeing it on my web site. Wouldn't I be hosed at that point!

p.s. For those who want to read through copyright laws visit:
http://www.loc.gov/copyright/

National Geographic's response to Copy Right
 

Well, I am pleased to share with you National Geographic's response to my inquiry about obtaining permission from the photographer, to use my "altered image" from one of theirs. I quote:

I sent them the original and the work in progress and I hope others can benefit from my humbling experience. Now I know how far you can push the envelope....0%.

I would suspect that "publication" includes this site?

Chris, I don't know, but isn't the context in which this work is displayed of a different nature? The posting helps to educate others, besides myself to learn about what to avoid and it generates discussion about the topic. Besides, since I am also in technical need of assistance, I doubt it acts as a work being on display. It is a work in progress with many, many problems that I am diligently working at.

Why give yourself the headache in the first place?
 

It is really hard sometimes to come up with reference materials for paintings. I understand that. However, when we use someone else's imagery without permission (for a work that is intended to display and sell), we cheat them and we cheat ourselves.

If we are going to paint from photos, then it should be from photos we have taken ourselves, or have permission from the photographer to use.

Imagine the mortification of having your painting removed from a show because someone identified the picture that was used to produce the work - not to mention the legal and ethical problems if the photographer or their agent is notified of the infringement.

I know of an artist who did wonderful media paintings from popular movies - unfortunately without permission of the copyright holders. He was hit with a $1.2 million law suit because he used their characters - even though he produced (mostly) his own reference - poses, etc. They own not only the images, but all generated images based on their characters. Needless to say, it seriously hampered his career which is really sad because he is a wonderful painter. Hopefully, we all learn from others trauma over things like this.

Michael, I did this piece for my own enjoyment and I do have work that I have used with permission of the original photographer. But quite frankly I have also been intrigued for some time now by exactly how much one can use as reference and change it to suit his/her work.

The truth is that there are many artists out there who have or will go for the prop, pose or mood of a piece. After all, we humans do learn through imitation. But as I pointed out, the line of copying vs. procuring one's own creation through the use of reference material seems very fine and besides educating myself just how fine it is I thought let's alter as much as possible without losing the essence of the photograph and see what happens.

National Geographic's response regarding use of their images
 

Well, the final word from National Geographic has arrived and, with many thanks to Hillary for providing this information, I will post her email:

I hope this information is beneficial to everyone. Keep in mind there is stock photography available for a fee.

*Cynthia, I have tried to remove the original image and was not able to do so. Please go ahead and remove the pictures and let me know if there is a way to save the text.

Enzie did they say what the fee would be? They say they own the rights but they did not say if you could pay for the rights to use the image.

Michael, no they didn't.

I had asked for them to give me this information and received an apologetic reply that a different firm has the rights to this image. I found this somewhat confusing, because at first I was told the following:

I did request that they give me an idea of the price if it had been their image, but did not get a response.

Single Use vs. Multiple Use
 

National Geographic often buys the "rights to reproduce", while the rights to the photo itself remains with the photographer.

I used to buy clip art and photography for use in publications.

Most of the time, the cost is dependent on the "number of impressions" you intend to use the work in. For instance, if you want to use a photo in your corporate brochure, the cost to use the image is based on the number of brochures you intend to make. Costs can also be based on time - i.e., we bought some images for unlimited use in our marketing materials for a period of one year.

Now, this was for stock photography. In the case of a photographer who sells their pictures for publication, you should expect the cost to be quite a bit higher because that is their art and they sell it as such.

You might want to drop his rep a line and find out if he is even amenable to your using the image, and if so, how much. It is a nice painting and you might be able to sell it if you can get their consent.

Thank you for the advice, Michael G.,

I will follow up on it and let you know what I find out.

By the way Peter Essick's work can be found at http://www.rolphoto.com/Peter.htm
I have contacted him directly to see what he says regarding fees and usage permits.