Think Carefully About Copyright and Model's Rights

In Which I Give an Open Response to Someone Who Has Copied From Me in the Hope They Don't Ruin Their Career Before It Starts

I get asked constantly if someone can "base" a painting off of one of my photographs. More often, someone just does it and then demands my permission after the fact ...

About 35 years ago, I did something similar ...

I found a photograph I really liked and I based a painting on it, changing minor details that clashed with my sense of composition. It was of a woman sitting on a chair, facing away and looking backwards at the camera. I spent a long time on it and really liked it once I was done.

I showed it to a gallery owner along with some more original works and he thought it was the best of them. But he said "That woman looks familiar, who's the model?" and I couldn't tell him. When I admitted that it was from someone else's photograph he essentially said he couldn't work with me.

I eventually found out where the photograph came from. It was a picture of Charlotte Rampling originally published in Playboy. After doing some research on international copyright law, it became obvious that I did not own the copyright to my own painting. I kept it for many years, but could not show it, and eventually tore it up and reused the stretcher bars for a new canvas. But I learned an important lesson and THAT's when I started taking photographs of my own models.

I've never copied from anyone else's work again.

Up until I started shooting underwater, my photographs were only used for my paintings. I'm now doing more photography than painting but I've still sold more paintings than photographs by a wide margin. I've got paintings hanging in galleries as far away as S. Korea ...

Now I'm sure that modern attitudes about copyright have changed a great deal since I was young, but many of the laws have not kept pace with cultural acceptance.

What I think about what the budding artists here have often done, transferring a composition from one of my photographs to their painting, is not particularly relevant. If you post an infringing image online, you could potentially be sued. Frankly, I'm too old to go to that much trouble ... But did you consider that you don't have the models' permission to use their likeness? When someone sits for you, or lets you take their picture for a painting, it's hard for them to convince anyone that you didn't have their permission. But if you do it without their knowledge it's just as clear that you did not. Models have rights too, you know, and they're actually a lot easier to enforce than copyright ...

But if you were to give one of these images to a gallery, and then they sold it for any amount at all, and then someday the buyer ran across my photograph and realized that he had paid money for a painting that was in some sense a copy, that would be criminal FRAUD and could land the gallery owner in jail, or at least destroy his reputation. Even if nothing really came of it but the buyer demanding his money back, you might find that no gallery would touch your work afterward ...

Copying is something that students are taught to do and it's usually a very good way to learn. Copying from an Old Master in a museum (which are not Copyright) is completely acceptable as no one will think you're trying to pass it off as the original.

But copying (in any way) from a contemporary source is likely to cause more problems than it solves. Passing off my composition as your own work could really wreck your career ... even if I agreed to it!

My lack of response to an inquiry would change nothing. Since I didn't give permission, nor formally assign the Copyright, it would be a clear infringement if it ever came to Court. Once you admit that it was based on someone else's work it would never be in doubt. It would be a good idea to pick up a book on "Copyright Law for Artists" - I think it's still in print - before you do anything like this again.

But even if I had given my permission, and it was completely legal, what do you think a gallery owner would think of it once he knew it was a copy of someone else's composition? Composition is what an artist actually creates ... in photography, one does it by selection of the frame and pose, in painting, one does it by construction of the scene ... If you copy someone's photograph you have done Nothing! Transferring an image from one medium to another is about as creative as a Xerox machine.

Whether you are a young artist just starting out, or older than I am, I hope you learn this lesson as painlessly as I did ...

-alberich

p.s. Last time I did a search the image was easy to find, but apparently Playboy has gotten aggressive and had them taken down. It was not Helmut Newton's picture of Rampling sitting on a table which is still available ...

That gallery owner actually did me a big favor ... maybe you can pass this advice on some day.