[Lindy]

Okay, let me preface this question that I would like to cover new ground here. I would also further state that I respect and agree with copyright as it applies to original art.

My question is this - when using actual photographic work created by othes as a basis for what we are working on how would copyright fall in here. Yes we are using a different medium, but my understanding from when I was in art school is that if we based a piece on a photograph that wasn't ours, then we start to run into copywright infringement since we aren't the artist who took the picture, we don't have the right to use it for selling under another form of art, be it oil painting, pastel, carving or pyrography. My instructor was also rather insistant that if we want to base a piece on a scenery, face, animal, then the only honest way was to take the photograph ourselves so we would own the right to that piece. Does the same apply to works of the "Masters" in the artworld with their paintings and depictions?

Please do not turn this into one of those fiery debates! I am seeking information as I have been very careful with my animal studies to take something from each photo I use and then add what is my creation in it, whether it be the background, the landscape etc, before calling it my own.

So if anyone knows how copyright law applies here, plus your understanding it of, please share here.

Rules of Engagement - This for information purposes only and there will be many opinions stated here, let's not attack those opinions, but rather state what we know and work from there. Please respect each other on this topic so we might all learn something we don't know, including me, because I have been given information but I see now that might have been mistaken.

Thanks!
Lindy

[Fergster]

Hi Lindy, I'm far from being a copyright lawyer, but a couple of points:

1. There is no copyright on ideas - you can take the concept used by another artist and use it yourself.
2. After a number of years (depending on what country's laws it is), works enter the public domain, so when you speak of 'masters', Michaelangelo's David or La Pieta, say, are completely fair game.

[doris]

hi lindy,

i am no copyright lawyer either, and live in a different country, so copyright laws here might be different , so maybe i should not enter this discussion... but i learned too, as you, that you may not use fotos taken by different people to work your own piece on a bases of that foto, and call it later your art. you should then say, i used the foto of person x, (and actually you should ask person x for permission beforehand)...
it is a different thing if you ask someone to take fotos of a dog, say, and ask to take fotos in this and that way, so that you have reference material to work from. this is allowed. (thats what i do, since i am so bad fotographer) but, collecting pictures/fotos from internet or books for that purpose is only alowed when these fotos were posted with the statement like "feel free to use as reference foto"...

ideas per se are copyrighted. i know from my profession. only problem is, it is often difficult to tell who had idea first, and to tell when two ideas are different or same...

another important point is, if you base your own work on existing art (and fotography is an art too) you may copy exactely this art (in the same medium or a different one), provided it is for your own only, that means that you neither sell it nor give it away as a gift. that is a good rule, since it allows you to copy masters just for learning purposes...

i am glad you asked this question, as i too think it is important to know where are the borders we should respect. of course, basic things are common sense, but your question is more difficult....i am looking forward to learn more on this topic too. thanks for bringing it up.

[Irish]

I also will start with the standard disclaimer that I am not a copyright lawyer. However, I do and have had one on retainer for umpteen years and have used his services far more times than I like to even consider.

Photography is considered a copyrighted art form just as oil painting, illustrating and wood burning. A photographer, as any other artist, has an assumed copyright to their image once that image is in either hard form (printed on paper) or digital format. As with all arts it is best to submit three copies of that photo to the Library of Congress, Visual Arts Copyright Division along with the appropriate forms for documented copyright. You can fill out the forms yourself and the fee, if you are not using a lawyer, is minimal.

Copying art into a new media is called "Translating" that art. So when you make a wood burning of a photograph you have translated that photo into a wood burning. You can translate through any media as pastels to oils, wood burning to 3-D sculpture or wood carving to colored pencils.

A translation of another art work does not break/destroy/diminish the copyright of the original work. The copyright remains with the original work and what you have created becomes a derivative. Only the original artist can own a copyright on any derivative created from their art, you can't.

The copyright always remains with the original work no matter what media the original was created with nor what media the derivative was created in ... the original owns the copyright.

So, in brief, ALWAYS get a signed, dated release form from the original artist if you intend to show, display and especially sell your wood burnings made from their art. This also includes creating patterns from their photos and teaching classes (whether free or paid) using their original art. DO NOT depend on word of mouth as that holds no weight in a court of law!

... Continued in next posting ...

S.

[Irish]

I should have said above to get that signed and dated release form in hard copy ... on paper with an actual physical signature of the original artist. Do not depend on email agreements for something as important as copyright release.

The copyright laws are really not that old and yes some older art works do not carry a copyright on them because they were created before the laws went into effect. BUT! Photographs, scans and digital copies of those old artworks do carry copyright. Example, a Da Vinci painting does not carry a copyright but my scan, photo or digital copy of that Da Vinci painting does. So if you are browsing the net for photos and heist one from someone's site as the National Gallery you are infringing on their copyright to their digital images ... be careful!

Copyrights can also be created post humus by family members and by businesses. An artist's works that were published in the early 1800's by a publishing company may now be copyrighted by that company ... Be careful!

Copyrights can be willed to family, friends and businesses. Just because the artist has died does not mean their artwork is now out from under copyright laws. In fact you can get sued even faster because the inheritor is protecting their newly acquired artwork copyright ... Be careful!

Easy and free public access to artwork and images does not imply copyright free nor Public Domain. All artwork, under our laws and internationally, is assumed copyrighted unless a document has been posted by the original artist that releases that artwork into the Public Domain. Going to the National Archives for photographs does not guarantee that those photos are copyright free or Public Domain ... Read the Fine Print before using!

If you use Public Domain images keep a digital copy and paper printed hard copy of that release form with your artwork! Do not depend of "it said it was free" because the person who's site you snatched it from may have snatched it from the original artist. But you will be held accountable for copyright infringement because you didn't do your homework.

To prove copyright infringement all an artist has to do is take you to court, show the judge and jury their piece of artwork and yours. If yours looks like theirs - you lose!

One more little goodie here ... If you hire a professional photographer to take a photo of your daughter THEY not you own the copyright to the photo unless you have a "Work for Hire" release.

All of the above and the previous post also includes partial usage as just the barn, just the trees or just the dog from the photo or other piece of artwork.

So, yes, you can not copyright an idea. So thinking that you want to burn a barn scene can not be copyrighted. But once that idea is in tangible form (paper, wood, paint or digital format) in any way it is no longer an idea it's a Copyright piece of original artwork by another artist!!!!

Ask first! Get a signed, dated hard copy release form second. Burn third!!!

S.

[Irish]

OK ... so an artist that we know used a dog from the front packaging of a well known dog food company as one of the subjects of their painting. They reversed the dog so it was looking left instead of right. They change the dog's coat coloring and they put that dog into a different setting with several other dogs. Don't know where the other dogs came from?!?

The artist was no well known and had just started into dog art. They posted their painting to the web and I don't think it took two weeks before the dog food company had their site taken down by the hosting service. by the third week the artist was receiving very nasty notes by mail from the dog food company.

So. please, don't assume that what someone (the original artist) doesn't know won't hurt you!

S.

[Ashbys]

Great post and excellent question.

I am not a lawyer nor do I give legal advise , but I have been studying the laws in this matter. Susan and Doris give some excellent information and I will try to add some more.

If you take a photo of anyone, without their permission, you can not receive a copyright. Because the person owns the copyrights to their own image. To get a copyright you have to have written permission from the persons in the picture and to publish it .. post it on the net you are required to have their permission.

You do not have to register for a copyright, but it makes things simpler if you are required to go to court. But all work is instantly cover under copyright laws from the time it is developed and given form, letters , drawing photos.

And all photos are not the owners or the one that took the picture. Many places allow you to take pictures but withhold the right of publishing them without paying a license fee. The National Zoo is one of these. You can take all the pictures you want, but you can not use them for any business use. The zoo retains the rights of the photos taken. Most of the National museums now have this restriction.

Public Domain pictures on the net have to include the disclaimer that they are freely given or they are considered copyrighted.

To maintain a copyright you must actively go after any known infringement of that copyright or lose the right to the copyright. Often done with a cease and desist letter.

There use to be an artist allowance in the law that would allow so many infringements for artistic purposes that is being changed where even the production of a single copy can produce a law suit.

[mdallensr]

Thanks all. That was a really useful and informative thread. Mike

[LA.DUSTY]

I guess I am not the brightest one....

1. Does it all mean that if I like a painting or a sketch by a living or deceased artist, copy it and carve a relief carving or a statue of it and then post it on the internet as my work (without mentioning the artist's name) I am in trouble? The carving would be just for me not for sale.

2. If I pay a professional photographer to take pictures of my work, do I have the right to have those pictures published in a magazine or post them on the internet without his permission (or release?) or does he own the rights to these pictures and I would be in trouble again?

I have no experience with this and feel really a bit off....

Thanks

[Irish]

1. Yes - you could be in trouble. Copyright has nothing to do with whether you post their name or whether you acknowledge that they, not you, created the original work or whether you insist that it's free advertising for their art because you gave a link to their site where you got the original art.

It also has little to do with whether you carved it for your own enjoyment or for sale. If you are displaying that work, especially in an international setting as the net, you are using their artwork original to promote yourself. "See me - see my carvings and wood burnings" promotes you not them. Consider also that if you do state who the original artist is/was are you not advertising that it is OK for other carvers and burners to snitch and profit from that artist's work.

It sure has nothing to do with whether they are dead or alive ... it's whether the art is truly in public domain or not.

Would you want someone to do that with your original art ???

Copyright has everything to do with who did the original art. So once you define your question with "a painting by an artist" you are stating they they did the original and so hold the copyright.

If that artist died before the mid-1700's you probably will be OK as the original work probably was not copyrighted. But do your homework first by searching the net to determine if someone else now owns it!

Example ... A carved translation of a Da Vinci is probably not going to get anyone in trouble but a carved copy of an Ansel Adams could mean instant law suits ....

2. Yes! You are talking about a Work for Hire situation and you own the copyright to the photos ... but the photographer also has the right to use those photos to promote their business unless you specifically have a signed contract that states they can not be so used.

Example, when I go to press with a limited edition art print my printer makes four color scans of the original, test copies and then does the run of 500 prints. I own the copyright on the original. I own the copyright to the limited edition run and all licensing and reproduction rights to that original art. BUT ... my printer has the legal right to a small edition of that run, usually under 25 prints, called Printer's Proofs that they can use to show other artists to promote more sales for their company. My printer can even sell that small edition without any financial compensation to me.

When I go to press I negotitate with my printer over the Printers Proof edition ... not whether they are intitled to one because they legally are but how many prints they will want in the run and what price range they will sell those prints for so that he or I don't under cut one another.

Why, because I gave him permission to create the print run and therefore granted him the right to make or translate the original into prints.

So, yes, you do own the photos but they also have some limited rights to use them too. It is easy to write on the bottom of the bill of sale with the photographer that "The original artist, ___Fill in your name ___, retains all rights and international rights to the reproduction of these photos and that they may not be used for any purpose including promotion, sales or reproduction into any other media without the original artist's signed consent."

S.