Monday’s Art Marketing Action newsletter about artist ethics created a stir in some circles. William Pilch took issue with this:
1. Don’t copy someone else’s art and try to pass it off as your own. Painting directly from photographs that were taken by someone else is not only unethical, it’s a copyright violation.
What I should have said is:
1. Don’t copy someone else’s art and try to pass it off as your own. Painting directly from photographs that were taken by someone else is not only unethical, it might be a copyright violation.
William was right that I should have double checked on my wording before issuing the newsletter. So I consulted with attorney Kevin Houchin to get the skinny. He says this.
If the photograph is not in the public domain, and the painting does not add substantial additional artistic expression (basically the difference between “copying” and “inspiration”) then the painting is a derivative work from the photo. If the painter does not own the photo, or does not have permission, then we’re looking at a possible copyright infringement.
It’s kind of a gut check on the copying v. inspiration, and it’s important to note that it’s not the “subjective” intention of the painter, but rather the opinion of a (an artistically challenged) Judge or Jury that will make that call on if there is enough additional artistic expression.
There’s no % or other objective standard. It’s case-by-case.
Bottom line: Ethically, it's always best to use your own photos or to get permission to use someone else's. Legally, it's up to a judge or jury.
Image ©William Pilch, Along the Canyon Walls.