Resolution of a real life copyright situation

Enzie Shahmiri · 10-10-2002, 08:22 PM

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!

Enzie Shahmiri · 10-10-2002, 08:24 PM

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.

Enzie Shahmiri · 10-11-2002, 08:51 PM

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.

Jean Kelly · 10-16-2002, 02:14 PM

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

Enzie Shahmiri · 10-17-2002, 01:14 PM

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.)

Michele Rushworth · 10-18-2002, 12:34 AM

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!

Enzie Shahmiri · 10-18-2002, 12:25 PM

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!

Michele Rushworth · 10-18-2002, 02:35 PM

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.

Michael Fournier · 10-18-2002, 05:02 PM

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.

Enzie Shahmiri · 10-18-2002, 07:14 PM

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/