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When is painting from a photograph a copyright infringement?

Today, I was asked during my Zoom workshop if I could actually ‘sell’ paintings that I took from free, stock photos.

Many artists paint from stock photos. I paint from a number of free photo sites to get inspiration on subjects, particularly animals such as dogs. I do a lot of dog paintings, most are commissions, but a few are sketch paintings that I do sell from free photo websites. Many of these paintings are smaller paintings from my sketchbook. All of my paintings outside my sketchbook that I would not consider “sketch paintings” are made from my own photos.

Ideally, you want to take your own photographs if you plan to sell presentable art or enter art contests.

I had to think about the question of ‘selling’ work from free photos. In my opinion there is a distinct line as to when you can paint and sell work in the public domain and when it is actually a blatant, copyright infringement. So , the short answer is . . . it depends.

I’ll give you an example of a blatant copyright infringement that actually happened to me last year.

In 2019, I encountered a person on Instagram who clearly painted and posted a painting taken from one of my personal photographs. In fact, I had received an award for a painting I made with this photograph and posted the photo and painting to Facebook. This photograph was taken at our local Bayfront.

I presented this painting taken from my personal photographs to the SWS in 2019 which won the “Presidents Award”.

This painting, taken from a personal photo, won the Presidents Award at the SWS Competition in 2019.
Original Photo of Piper
Painting by another artist of my photo without permission.

Shortly after posting this painting, I was scrolling through Instagram and found another artist who painted my exact painting. My painting was called “Piper” which you can clearly see on the back hull of both my work and the artist who repainted it.

To say that I was a little shocked when I saw the above painting scrolling through Instagram was an understatement. I reached out to the artist and asked him to take the picture down and remove it from Instagram. At first, the artist was quite upset saying that his rendition is purely an ‘artistic interpretation’ of a photo he randomly came across on the internet. However, after I showed him my original photos with the timestamp and explained to him that this was an awarded watercolor, he began to see things a little differently. Instagram also stepped in and blocked the artist account until the photo was removed. The artist, having over 55,000 followers, quickly removed the painting to have his account reinstated.

This is an example of a copyright infringement.

One of the more famous copyright infringements happened in Belgium in January 2015. It happened to Luc Tuyman. Luc Tuyman is a famous Belgian artist best known for his paintings that explore people’s relationship with history, particularly World War II. He is a key figure of European Figurative painters.

From DIY Photography (https://www.diyphotography.net/painter-found-guilty-plagiarism-painting-photo/)

He was found guilty of plagiarism by a Belgian civil court after he used a photograph taken by Katrijn Van Giel as the source of his painting A Belgian Politician (2011), a portrait of Jean -Marie Dedecker.

Tuymans appealed against the ruling, claiming that the painting was a parody or critique of Belgian conservatism.  He was originally sued for $57,000. (DIY Photography) He and Van Giel (the photographer) reached an amicable, confidential out-of-court settlement in October 2015. 

So when is it OK to paint from photos and even sell them without copyright infringement? The best case is when the photographer will give you written permission to use the photograph as reference material. This is where the line gets obscured. If you can’t or don’t get that permission, copyright infringement is less likely if an artist creates a painting which is their own personal interpretation of a photographer’s techniques for creating visual effects, for example lighting or post production effects, and the artist or illustrator uses those techniques as inspiration for their painting or illustration rather than copying them directly.

In this situation, they are unlikely to have infringed copyright laws. An artist can also use multiple reference photographs from multiple points of view or style and combine them in a new way.

This brings up the concepts of “fair use” . This is a situation that allow for the use of photographs or other materials use without copyright to be used by artists as sources for their art work. However, it just meet certain criteria.

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair use is generally understood and defined by four criteria. In short, an artist or any person who uses an image for purposes of commentary, criticism, reporting, or teaching, is not violating copyright law or copyright infringement. (The Law Tog)

Clearly, even in fair use, profiting in this situation may violate copyright law. So, this gets us back to the original question of profiting or selling paintings from “free photo websites”.

There are a number of “free photo websites” on the web. Pexels is a website I often use to find my animal photos as inspiration for painting. On this site, under License it says:

What is allowed?

We tried to keep the Pexels License as simple as possible. Keep reading to find out more.

  •  All photos and videos on Pexels are free to use.
  •  Attribution is not required. Giving credit to the photographer or Pexels is not necessary but always appreciated.
  •  You can modify the photos and videos from Pexels. Be creative and edit them as you like.

What is not allowed?

Respect the hard work of our contributors and keep these restrictions in mind.

  • ✕ Identifiable people may not appear in a bad light or in a way that is offensive.
  • ✕ Don’t sell unaltered copies of a photo or video, e.g. as a poster, print or on a physical product without modifying it first.
  • ✕ Don’t imply endorsement of your product by people or brands on the imagery.
  • ✕ Don’t redistribute or sell the photos and videos on other stock photo or wallpaper platforms.

Here is one example of using a photo without copyright:

Photo of a Polar Bear by Magda Ehlers from Pexels Free Photo Website
Watercolor painting taken from photo reference

In the above example, there is obviously a similarity with the photo to the watercolor painting. However, the painting is not an exact copy and even if it was painted exactly like the photo, it would not violate copyright infringement. This is because the photo reference came from a free photo website where it clearly states the photos are for free use.

A question in the Pexels FAQ directly asked whether artists can ‘paint’ the photos and it was clear that any artist was free to use the photos for paintings and sell them without copyright infringement.

To be clear, it is best to use your judgement, try and use your own photos for entering works into competitions or shows. If you must use a photo from another photographer, get permission to paint the photo, specifically if you plan to post it as your work or even sell the work.

Use free photos for ‘practice’ paintings to keep up your skills. You may even sell paintings taken from free-photo sites without attribution or worry of copyright infringement if they are used as reference material for painting and you paint them in your own style.

If you can, please comment and let me know your thoughts on this subject. If you have had a similar experience concerning copyright infringements or thereof, please feel free to share it here with us.

8 comments

  1. Your explanations are very clear. This post helped me understand the copywrite rules much better. I had been uncertain about making paintings from photographs I found on free use websites such as Unsplash and Pexels.

    Liked by 1 person

    1. Yes, I get a lot of questions about painting from photos. It’s perfectly OK to paint from free stock photos, many artists do it. If you are entering watercolor competitions or shows, original work is required, this includes original photographs. Hope that helps!

      Liked by 1 person

  2. This is an excellent and clear bit of valuable advice! I use Pexel myself but also keep common sense uppermost when using the reference material. We must be constantly aware of the “small print”. Your own experience is proof itself that it works both ways, artist and provider alike! Thank you Al!

    Like

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