Resolution of a real life copyright situation

[Enzie Shahmiri]

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:

That image is from a Sept 1989 article and was taken by Peter Essick. He is represented by National Geographic, therefore, we own the rights to all of his images. You will not be infringing on any copyright laws if you do not publicly display your painting (which is excellent, by the way), sell it or make any profit from it at all. If you have any more questions, please let me know.

Thanks, Hillary Murphy

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%.

[Chris Saper]

I would suspect that "publication" includes this site?

[Enzie Shahmiri]

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.

[Michael Georges]

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.

[Enzie Shahmiri]

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.

[Enzie Shahmiri]

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

My boss said that as long as the photograph could be recognized in your painting, it was an infringement of copyright law."

1. Regarding alteration of gender and clothing:

I guess you would have to use your judgement in terms of changing the person's sex or clothes.

2. Posting the altered image on your personal web page or any other site:

You couldn't put it in a web site if it was too similar to the original because that is considered a type of publication.

3. Using an altered image as part of your personal portfolio:

As for your portfolio, I guess I would say
that would be fine. You would be using it as a point of reference and wouldn't really be displaying it to the public. If you started showing it over and over, however, it would probably become a product and therefore, an infringement of the law.

These are very complicated situations. The best way to be sure that you are within the boundaries of the law would be to check with a lawyer. We are happy to give you advice, but we here at the Image Collection always advise professional advice, as we are not lawyers or very familiar with the law.

Thanks for bringing these issues to my attention. I have never dealt with a
similar situation and have learned a lot myself.

Hillary Murphy

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.

[Michael Fournier]

Enzie did they say what the fee would be?

That image is from a Sept 1989 article and was taken by Peter Essick. He is represented by National Geographic , therefore, we own the rights to all of his images.

They say they own the rights but they did not say if you could pay for the rights to use the image.

[Enzie Shahmiri]

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:

That image is from a Sept 1989 article and was taken by Peter Essick. He is represented by National Geographic, therefore, we own the rights to all of his images.

I apologize for a big error of my part. Having just run this situation by some of my colleagues, they informed me that we no longer represent Peter Essick. He is represented by:

Aurora & Quanta Productions
188 State Street, Suite 300
Portland, Maine 04101
telephone 207-828-8787
fax 207-828-5524

I was told that we can't offer any advice because Aurora's policies may be different than ours. Again, I'm very sorry for the confusion.

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

[Michael Georges]

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.

[Enzie Shahmiri]

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.