Odd copyright question with photography implications: My wife runs an art association putting on a juried (judged by experts) art show. By law, any submitted painting must be an...

fourlocks Loc: Londonderry, NH

My wife runs an art association putting on a juried (judged by experts) art show. By law, any submitted painting must be an original which means if a painter used a photograph as their model, it cannot be a professionally produced photograph from, say, a magazine or calendar unless the photographer gave the artist permission to recreate the photo as his/her painting.

An artist submitted her painting of a Snow Leopard. Now, it's impossible that she took the photograph herself and when confronted about it, she said it was her own photograph...taken of her TV airing a BBC Planet Earth program. My thinking, is that the BBC would have to provide permission to use their "image" even through it's from a TV show. Technically wouldn't each frame of the film be a copyrighted photograph?

Darkroom317 Loc: Mishawaka, IN

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

Look up Sherrie Levine: After Walker Evans. Levine rephotographed a Walker Evans photograph reprinted it in the same manner and claimed it was hers. It was a conceptual piece meant to challenge the notions of ownership. Also, look up appropriation art.

artBob Loc: Near Chicago

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

Some problems with the question. Is the painted image EXACTLY a reproduction of the photo? If not, and judges and juries quibble over this, if the painting has changed the photo in some ways as a matter of self expression of the artist, it is not a violation of copyright.

For a fuller overview, go here: https://thelawtog.com/someone-makes-illustration-painting-based-photograph/

bpulv Loc: Buena Park, CA

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

I am not a lawyer, but if there is a legal parallel between copyright and patent law, it may be legal. As I understand patent law, if you make an improvement on an existing patent, it may be legal. The painting could be considered as an improvement on the photograph. If there is a lawyer out there please weigh in!

Mac Loc: Pittsburgh, Philadelphia now Hernando Co. Fl.

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

Doesn't your wife's art association have a lawyer?

radiojohn

Not sure if there is a difference between painting and old barn you see and what she did?

dsmeltz Loc: Philadelphia

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

This is less a copyright issue and more an issue of the clear meaning and intent of submission rules. If you allow this image pulled from TV, you will need to allow any painting based on any image. "Hey, I did not paint from the image in the book I have on my desk, I took a photo of the image in the book and based my painting one that!" It violates the clear meaning and intent of the rule. Disallow it.

dsmeltz Loc: Philadelphia

radiojohn wrote:

Not sure if there is a difference between painting and old barn you see and what she did?

In one the artist went out chose a POV of the barn and created from that chosen perspective. In the other they just painted by numbers using a grid to transfer the photo to the canvas.

artBob Loc: Near Chicago

fourlocks wrote:

My wife runs an art association putting on a jurie... (show quote)

Perhaps the use of the word "law" is confusing. It is not against copyright law to paint from any photograph, if the artist "adds," such as expressive brushwork, addition items, different colors, et al., and doesn't compete with the original. Making one painting would not cause a problem.

"Rules," are different from "laws," however. As a jurist and as an organizer of art organization competitive exhibitions, the painting would be disqualified, as the intent, not to copy but to create from your own vision, is clearly violated.

So, it is against the rules, but not against the (copyright) law.

radiojohn

Where did you read she used a grid to transfer the image like paint-by-numbers? I must have missed that. That would certainly not be very creative.

But you are correct, it also would be tough to change the POV.

This begs the question, how many artists work purely from imagination versus looking at something?

artBob Loc: Near Chicago

radiojohn wrote:

Where did you read she used a grid to transfer the image like paint-by-numbers? I must have missed that. That would certainly not be very creative.

But you are correct, it also would be tough to change the POV.

This begs the question, how many artists work purely from imagination versus looking at something?

The concept being that the ARTIST does the looking and creating, with sketches or photos assisting the process if needed. To flat out copy a good photograph using ordinary "realistic" art techniques is like, well a comedian stealing another comedian's jokes or a more famous band stealing another musician's melody.

dsmeltz Loc: Philadelphia

radiojohn wrote:

Where did you read she used a grid to transfer the image like paint-by-numbers? I must have missed that. That would certainly not be very creative.

But you are correct, it also would be tough to change the POV.

This begs the question, how many artists work purely from imagination versus looking at something?

It is what is often done when transferring from photo to canvas. It is a basic technique. I learned this a a youngster when I and my sibs were photographed by a local artist to use in his paintings. He used to let us watch him work (for short periods.) He would place a grid over the photo and work on each square of the grid. This was also how I learned to transfer design renderings to stage backdrops during my 20's.

RichardTaylor Loc: Sydney, Australia

radiojohn wrote:

Where did you read she used a grid to transfer the image like paint-by-numbers? I must have missed that. That would certainly not be very creative.

But you are correct, it also would be tough to change the POV.

This begs the question, how many artists work purely from imagination versus looking at something?

For CGI images (of things that don't exist in the real world) it may be purely from the mind (idea). This is rare for me.
Somtimes you may have an idea, and then look around to see what resources (3D models etc) are avalable , or needed to be built, to complete the image.

fourlocks Loc: Londonderry, NH

artBob wrote:

Some problems with the question. Is the painted image EXACTLY a reproduction of the photo? If not, and judges and juries quibble over this, if the painting has changed the photo in some ways as a matter of self expression of the artist, it is not a violation of copyright.

For a fuller overview, go here: https://thelawtog.com/someone-makes-illustration-painting-based-photograph/

This site offers about the best explanation I've seen; thanks. I should have added that paintings in the art show are for sale so the Art Association is probably playing it safe with possible copyright infringement by requiring that the source of the painting, whether a photograph or screen shot, must be the artist's or at least the artist has permission to use it.

As this linked article notes, there's a pretty big grey area here as the painting must clearly be a copy of the original photograph. It states "...the most important question to ask is whether the painting or illustration is readily identifiable as a copy of (the original)?" In the case of the Snow Leopard painting, the pose, lighting background, etc. clearly copies the original screen shot but the artist has added (created?) her interpretation using her own painting techniques so the painting couldn't be called an exact replica. So if she sells the painting, does she owe the BBC money?

artBob Loc: Near Chicago

That's why there are courts. The general answer is no. However, let's say she makes And sells prints of a painting that she copied exactly, except for the paint strokes, from a photo that the photographer or copyright owner (say, Disney) sells. Now she is harming the copyright owner's sales, and she would be more vulnerable.