Painting from a photograph - who owns copyright?

With the about of 'pop art' prints or paintings on ebay and

in galleries i was just wondering whether the artists paid

any royalties to anybody or whether they (or most) were

simply breaching copyright laws?

I think it would likely be considered a derivative work which would require permission of the owner of the original copyright. So, depending on the circumstances, it could well be a violation.

So a photo of a painting would be a derivative work of the painter?

 

It's probably more complicated than that. I always understand the "theory" of copyright to be the expression of the idea rather than the idea itself.

i just a pdn article where a company took a photograph that looked exactly the same as another photographers and used it in an ad. they got sued and lost....had to pay the original photographer for the use of his idea and original image...sooooooo

i just read, that should be

It's not more complicated than that. It's a derivative work and, done without a license, a cut & dry copyright violation.

 

A photo of a painting generally isn't EVEN a derivative work. A derivative work requires some additional creativity.

The Library of Congress site covers this area in some limited detail. Here's one of their info circulars:

 

http://www.copyright.gov/circs/circ14.html

 

 

For example, years ago, it was possible, and I'll assume still is, to have painters in a foreign country cheaply and rather nicely, copy a photo portrait in oils. Since the copying was done overseas and the new oil painting was unlikely to be seen by the original photographer, the chances are excellent that the legal niceties were completely ignored. And I know that a number of designers, companies, cartoonists, etc., vigorously pursure infringements at swapmeets, and on the net, etc., but it's probably hard to keep up with the violators.

Like everything else it doesn't matter what's right, it only matters who has the "best" lawyer.

If a digital artist (or painter, sculptor etc) manipulated a photograph to create his own unique work of art it could be argued that it was his own piece of art and not somebody elses?

 

If someone photographed a contemporary sculpture and then manipulated the said image to make it unique would it still be a copyright infringement of the sculptor?

 

It seems to me to be a little bit of grey area and a very fine line. Obviously the matter would be completely different if the secondary work, was being passed of as an 'original' work. I guess a lot of it comes down to whether or not the work could be said to be a copy of the original, inspired by or a reworking.

 

In music the laws concerning sampling have obviously got a lot tighter, but for many years the artist whos work was sampled received little in the way of royalty - the samples often were not being cleared.

 

Now it is so easy to manipulate an original photograph and create a new piece of art and have it mass produced that there needs to be a well worded and clear definition.

 

In the UK there is a fashion at the moment for stencil (read photoshop cutout filter) paintings / prints from film and of TV icons (Scarface, The Godfather, Marilyn, Audrey, Ali etc). They are prints of painting of iconic images and a lot of other artists are cashing in on this on ebay and even copying the style of the 'original' photoshopped cut out paintings / prints... if that makes sense! (Hope so!)

 

I bring the discussion up after seeing how much money digital artists were making on ebay from quickly photoshopped and frontier printed images. Myself and another photographer friend were discussing how we would feel if one of our images were being used.

<em>If a digital artist (or painter, sculptor etc) manipulated a photograph to create his own unique work of art it could be argued that it was his own piece of art and not somebody elses?</em><p>

If the digital artist uses a preexisting work as a foundation for a new work, the new work is a deriviative work unless the portion of old work used is unrecognizable. The term of art used are "access" and "substantial similarity."<p>

In the hypothetical you describe, under U.S. law the digital artist has created a his own work. However, he can only hold copyright in the part of the work that is his own original contribution.<p>

The copyright laws are silent on the <u>method</u> of copying. The following item offered recently on eBay is both a derivative work and a copy, even though it was painted by hand:<br>

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&rd=1&item=3759946092<p>

<em>If someone photographed a contemporary sculpture and then manipulated the said image to make it unique would it still be a copyright infringement of the sculptor?</em><p>

Yes, subject to the above analysis. Outside the U.S., the laws can be even more restrictive. The French government, for example, states that taking a picture of the Eiffel Tower at night is a copyright violation.<p>

<em>I guess a lot of it comes down to whether or not the work could be said to be a copy of the original, inspired by or a reworking.</em><p>

IP law has a lot of gray areas, starting with the distinction between an unprotected idea and the protected expression of that idea. Something "inspired by" or a "reworking" of an existing work may be a derivative even if no "copying" took place. For U.S. law, you may want to read the definitions of a derivative work and of a copy in 17 USC 101:<br>

http://www.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17_10_1.html<p>

<em>In music the laws concerning sampling have obviously got a lot tighter, but for many years the artist whos work was sampled received little in the way of royalty - the samples often were not being cleared.</em><p>

Yep, it happened. Sometimes the sampling falls under "fair use," such as 2 Live Crew's parody of Orbison's song "Pretty Woman." Other times, such as Biz Markie's sampling of "Alone Again (Naturally)," the court summarizes the law as "Thou shalt not steal." Still other times, the sampled work is in the public domain, or the sampling is so trivial that the average audience member wouldn't recognize it.<p>

For historical and political reasons, copyright laws are frequently different for sound recordings, but this isn't one of those differences.<p>

Cheers everyone for your answers.

 

I guess the best comparison that i could come up with so far is the fashion industry where clothes from the catwalk 'inspire' high street stores to make similar designs, just changing them slightly not to infringe on copyright and making them of often inferior materials.

<em>I guess the best comparison that i could come up with so far is the fashion industry where clothes from the catwalk 'inspire' high street stores to make similar designs, just changing them slightly not to infringe on copyright and making them of often inferior materials.</em><p>

IP protection of fashion is a unique mess. In the U.S. you can copyright a design sketch, and copyright the design on a piece of fabric, but not a piece of clothing created using that fabric according to that design. You can also obtain trademark protection for certain design elements. Other countries have very different laws.<p>

You may find the following article interesting.<br>

http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1997121201.html