Art related question
- February 28, 2006 @ 1:28pmTarantulady says:I draw pencil sketches (by hand) of animals from photos. Most of the time owners submit their photos to me so I have their permission, but what about if I find a general photo on the web and then draw it by hand. Is that an infringement?
I'm sorta thinking it is, but then again I'm altering it with my pencil strokes. I plan on donating this art to a non profit, and will not make any money from it -so does that make a difference? - February 28, 2006 @ 2:33pmJMiller says:Tarantulady,
It sounds like the drawings you make of photographs would fall into the "derivative works" category of rights protected by copyright. Therefore, unless you are making substantial changes from the photos in your sketches, what you are doing is probably an infringement of copyright. To figure out whether this infringement qualifies as fair use (and it might), you should evaluate the four factors of fair use with respect to your situation.
The four factors are:
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.
Your purpose is non-profit, so that factor is in your favor. The nature of the copyrighted work is probably more factual than creative (you'd have to be the judge of this), which weighs in favor of a fair use. The amount of the work you're using - it sounds like you're using the whole thing, so this would not be in your favor. The effect on the potential market (some say the most important factor) seems to weigh in your favor because you are not competing with the market for the original work. If you *could* ask the photographer for permission and that creator could earn a royalty payment from you, then this might weigh against you.
I am not a lawyer and this is definitely not legal advice. For the four factors of fair use test, I mainly used the excellent University of Texas web site (http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test).
Good luck!
-JMiller - March 4, 2006 @ 8:14pmRDavis says:Tarantulady,
This question reminds me of the copyright infringement case that involved the artist Jeff Koons. He saw a photo on a postcard of a couple holding a litter of puppies in their arms and then had his assistants create a replica of the photo as a three-dimensional sculpture--obviously a derivative work. He was sued and I believe the owner of the copyright to the photo ended up owning his sculpture (I'm not sure if Koons ended up paying statutory damages as well, but I wouldn't be surprised).
Koons' use of the original photograph was commercial as well as artistic, unlike your own non-profit, artistic use. However, I disagree a bit with JMiller's consideration of the second fair use factor for your use of the photos. If the original photos that you use are expressive or have an aesthetic element to them (lighting, camera angle, etc.), then I would say they should be considered as creative works and not factual ones. And it isn't clear from your message, but if there's a chance the non-profit would take your donated drawing and sell or auction it off for fund-raising purposes, then your use would have a commercial aspect to it after all, which would probably tilt the fourth factor out of your favor.
With artwork you also have the issue of "moral rights" to consider--a concept with a longer history in European copyright law, but it was added in limited form to U.S. law with the Visual Artist Rights Act in 1990. (My source for this info is p. 76 of Carrie Russell's book "Complete Copyright," pictured in the upper-right corner of this page.) If your use of a photograph involved modification or distortion of the image in a way that could be seen as prejudicial to the photographer's honor or reputation, then you could be sued for infringement on those grounds as well.
All in all, I'd say seek permission for your use if the image is artistic or creative, even if your intended use is non-profit or philanthropic. - March 6, 2006 @ 8:36amCOvalle says:Small elaboration on moral rights- you are unlikely to be sued in the US for infringement with respect to moral rights in this situation. VARA is very limited in what it protects, and I do not think it would protect the moral rights of a work in this case. VARA protects single issue or limited signed and numbered works (less than 200) intended only for exhibition. The US does not have a strong moral rights tradition, and there are some good reasons for that. But that's another issue. ^_^
At any rate, you'd more likely worry about defamation and misappropriation than moral rights.
[quote]
With artwork you also have the issue of "moral rights" to consider--a concept with a longer history in European copyright law, but it was added in limited form to U.S. law with the Visual Artist Rights Act in 1990. (My source for this info is p. 76 of Carrie Russell's book "Complete Copyright," pictured in the upper-right corner of this page.) If your use of a photograph involved modification or distortion of the image in a way that could be seen as prejudicial to the photographer's honor or reputation, then you could be sued for infringement on those grounds as well.
All in all, I'd say seek permission for your use if the image is artistic or creative, even if your intended use is non-profit or philanthropic.[/quote]
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