Citizen Sketcher

Because I’m a painter, I move around in a constant state of inspiration.

Everywhere you go you see paintable things. You can’t look at the sky most days without seeing a great painting.

It’s unavoidable.

Naturally, I’m also addicted to social media – just like most of you – I’m constantly inspired by images I see online. 

I’m also constantly anxious and afraid to do anything about that inspiration.

For fear of Copyright Violation! (Cue Sinister Music).

As artists, we’re always hearing; “You can’t copy someone else’s artwork! You can’t paint from someone else’s photo!”

These regulations are always popping up in calls for entry, or in commentary about work online.

“That’s not real art, it’s just a copy!”

As if painting in nature, standing in front of the landscape, isn’t just a copy? Or sitting with a model, or a still life, or some flowers. Artists are just the world’s most subjective camera.

So – I did some research and here are my thoughts:

• FIRST: I am not a lawyer so this is my lay-informed opinion.
• SECOND: diverting business income by taking work and re-selling it is wrong. Classic example: downloading artwork and making it into t-shirts. < People have done that to me.
• Also, commercial use of a recognizable likeness of someone’s face – this is a theft of income. Every human has the right to be paid for the (commercial) use of their image. (Though, not in every legal jurisdiction. Personality Rights are not recognized in NYC for example).
• Same goes for commercial use of a building, a car, or even street-art if it ends up in a photo. (Designers and Architects have the same rights as any artist).
• So: no direct, mechanical copy FOR PROFIT. < This is common sense right?

BUT:

• NON-commercial use of anything (art, photos, likeness) is totally fine.
• Copies by students are an easy example, we can all agree that’s ok.
• Copied work appearing in your illustration or portrait artist’s portfolio is less obviously ok – but IS considered fair-use. It’s a true demonstration of your skill, not a commercial product. The commercial product is the future work you might gain, not the copy itself.
• AND >>>> most people don’t know this >>> one-of-a-kind original art is almost always ruled non-commercial.
• The Graphic Artist Guild of America says: “Generally, works of fine art are not considered commercial even if they sell for hundreds of thousands of dollars. Courts are more likely to consider artwork commercial if it is sold as mugs or t-shirts…”
• The key difference being, art is (generally) sold once, yes, the object may be re-sold a handful of times, but there is no mass (or mechanical) reproduction.

ALSO:

• Being inspired by an image, making (and selling) a TRANSFORMATIVE work is totally NOT copyright infringement.
• The existence of the new work does not in any way reduce the value of the old work.
• Often it actually increases value, by a kind of cachet effect. The original work must be great if it inspires so many copies.
• Examples of Transformative work:
  • Translating to a different media: Photographs recreated in line-art or weaving or say – an impasto oil painting.
  • Creating a composite image: Use multiple images for reference. To be safe, take no significant amount, or at least, equal amounts from each. (eg: collage).
  • Altering the source image: Enough that it would not be recognized by a stranger – not by the original artist. (That’s the rule of thumb in court). This also covers portrait-likeness. If a stranger (not the model) would not recognize the individual, then you have not stolen their face – even if you admit to using their photo as reference.
• Doing all of these things combined is (imo) bulletproof. But any *one* of these transformations *might* be sufficient to be within Fair Use. (It’s up to the judge).
• Rules of thumb:
  • Has the material taken from the original work been transformed by adding new expression (artistic interpretation) or meaning?
  • Such as parody, or recontextualizing, or juxtaposition.
  • Was value added to the original by creating new information, bringing new aesthetics, new insights, or understandings?

OK! Still with me?
That’s my rant about why it’s OK to think and act upon your actual creative thoughts no matter where the inspiration comes from.

Every thought we think comes from somewhere.

You see something, you read something, and you combine old ideas into new ideas. There’s nothing new under the sun.

Don’t be ashamed of seeing a great painting or photo and thinking – man – I would love do my own version of that!

All that said: you should still credit your sources.

[Photo: Trina Davies, Playwright of Waxworks, Shatter, Silence, The Bone Bridge and the GG-nominated The Romeo Initiative: http://www.trinadavies.com].

It’s just good grace between artists, and, if you are confident you’re doing transformative work, then there’s no reason not to.