Posted by Steve Sieren on July 30, 2009 at 5:20 PM
I have had painters ask if they could paint using my photographs as a reference point(or possibly just copying it). Even if they are referencing it are they just copying it? You might not ever know. I'm sure many of you have had the same thing happen since were all artistic as photographers and if we are not artistic our photographs just look like documentary work. The reason this happens is because the person with the paintbrush is "inpired" by your photograph. A source of inspiration and use as a reference point is the only use that they are allowed to do with your image. They can not copy it without your permission or the artist/painter would be violating your copyright laws. A painting made from a photograph is known as a derivative work. Even just for personal use is infringement of copyright laws. If you would like your photo permitted for derivative work, you can look up "Creative Commons Derivatives License." Well needless to say most of us don't want our stuff copied.
My question is how do most of you deal with this problem?
I'm sure some of you that have been photographers for say 10 years have had to come across problem since I've only been doing this for 5 or so years.
I have accumulated a list of names of artists and sometimes a company that wants a licence for nothing dollar wise or then after I say no they have the odasity to ask to buy a small print.
I always mention to the artist that I'm glad that they were inspired any photograph and that may use it as a reference point but to not copy the work as it is protected by copyright laws. A little more lenghty but still nice and firm on lines of infringement.
Iconic stuff isn't what concerns me it is the stuff a photographer has went out exploring for miles away from nowhere or even close to home where countless hours have been spent with things that have just been overlooked or oblivious to others.
Thanks for any thoughts or opinons on the matter even if you haven't been a photog for 5 or 10 years. It sure seems like we should keep an eye out for eachother on this sort of thing but I'm sure there many nice images that have been painted from and do have permission.
I just got another email today, haven't even checked out what image it was. Hopefully it wasn't a delicate arch shot or valley view in yosemite. If it was I'd encourage them to paint it.
Since you created the original work, you own the copyright, and the photo is your intellectual property, regardless of whether the photo is iconic, or no. If any artist, using any medium, uses even a portion of your photo that is identifiable as your work without having been granted a license by you, they are in violation of intellectual property rights.
If you allow someone to create a derivative work from (say) a shot you did of Delicate Arch, and then you attempt to seek renumeration from someone who uses (say) your recent light-painting image of the trees and pond, you wouldn't really have a case, because you allowed such a derivative work to be created without permission in the past. My opinion; either let everyone do it without permission, or no one.
If you sell someone a print, include an 'acceptable use' document with it. In the document you could state something like,
"You have the right to display this single, original photographic print in your home, office, or place of business." You are not authorized, under this license to duplicate this print and/or create any derivative work from this photograph.
"If you would like to create a derivative work from this photograph, you must contact this photographer and arrange for a license to do so." Please note, that creating unauthorized copies of, or creation of derivative works without the express permission of this photographer, is a violation of copyright and intellectual property statutes"
"If you have any questions, please contact me"
If you decide to allow a derivative work to be created from one of your photos, you have the right to require the artist to give you credit for the original work, whether they paid you, or not. If they do not, they are in violation of your intellectual property rights.
-P
ps: (disclaimer) The sample text I wrote above, may not be of correct legal form. I suggest that you write up someting and have your lawyer review it before you include such with any of your prints.
Some photographers will charge an artist for the right to use an image. I always turn these requests down. I feel it devalues my work when it is used as just a baseline for someone else's art, and it doesn't speak much for the painter's creativity when they need to replicate another's composition rather than come up with their own.
I have so far not found any unauthorized paintings of my images but I will not hesitate to pursue copyright infringements if I do.
Guy
Posted by Steve Sieren on July 31, 2009 at 3:35 AM
Thanks Preston for pointing me in the right direction. You have actually helped me kill two birds with one stone.
Thanks Guy. After denying them the any kind of usage rights, it might help to encourage them to explore with their own creativity. I never really thought of trying to steer them into a better direction.
Last week a watercolour wildlife artist asked me for one of my photographs of a goldcrest, the goldcrest shows extremely well and he wants to paint it onto a scene he already has in mind. If he had purchased my photograph and painted the goldcrest into his scene I feel sure I would never have known even if I saw the finished work. I now wonder how many times this must happen, even when our pics appear in mags, how could we know after the artist has put his interpretation on it?
At least this artist has requested a pic and I will get something out of it.
I can't see an answer to this.
A watercolor artist I have become aquainted with gets my permission and will pay 20% of the sale of the original.. EACH image HAS to have my permission.. Sales of the original watercolor run anywhere from $1500 - $5000.. She is growing in reputation too.. I'm good with that arrangement.. You may even be able to get a share of the print copies of the artwork too.. Negotiate.. I don't negotiate with out of the blue requests in email..
Be aware that lots of "artists" will balk. I figure that's a handy way to sort between the paint ploppers and the pros. We try to educate the ploppers, but some are totally resistant. Good riddance, and don't let the door whap your hiney. If they're pro's, they're aware. I imagine that we're educating the amateurs with ambitions of pro painting by drawing a hard line in the sand...er, paint....er, pixels. When we allow usage, it's purely pay-to-play and our rates are stiff. The true pro painters we deal with expect to negotiate a fee and a percentage and peripherals, but they expect to pay. They think photographers who give away their photos are downright stoooopid. I agree!
My sister is a budding watercolor artist. She used to ask for reference photo's. Being the kind helpful sister, I gave her a few. I stopped when I found out she was using a tracing light to shine the photo onto water color paper and trace the photo. She then put them on display in an art show and tried to sell them for a few hundred dollars. While she did mention in her display, she used a reference photo, after that experience, I no longer lend photos for reference. In my opinion, that's not original art, it's paint by numbers and I won't support that.
Posted by Terry Sohl on August 3, 2009 at 11:02 AM
When I first started doing bird photography, a certain well-known artist from Pennsylvania asked to use one of my Great Egret in flight photos as a reference. Being new at this, I was flattered, and allowed him to use it free of charge.
The resultant painting, with the bird as the focal point and in exactly the same pose and position as my photo, was shortly on sale on his web site...for $75,000. That was the last time I've allowed any photo to be used by an artist, without payment.
Through my website, inquiries from artists are probably number 2 or 3 in terms of frequency. I've taken to just sending out a boilerplate response to artists, asking 10% of final sales price. In nearly all cases, I never again hear from the artist.
I should throw out that there's a third option between free and pay, if you know the artist. Call it a Tweener, I guess.
I'm fortunate to count a very successful painter among my friends. We have a deal worked out based on a long friendship and lots of trust. He sits down at my computer simply to look at photos of particular animals or scenes, as kind of an orientation. It's great because I'm sitting with him, and the whole time we're talking business, art, photography, painting and if it's an evening session, the quality of hops used by the local microbrewery.
Our deal is that he doesn't do any drawing or sketching and the photos don't leave. If he sees stuff that he really needs to sketch for reference, it's usually parts of an animal rather than the whole. When it comes down to that he agrees to pay a nominal fee (usually $250) on the eventual sale of a resulting painting. It's an honor system, but it works for us.
If he really needs the photo and will use it directly in finishing a painting, the contract comes out and I get 50% of the sale, plus residuals.
Comparing $250 versus 50%, he's got lots of incentive NOT TO copy my work, but it's available when really needed. It works well for both of us.
No, I wouldn't do that with anyone else I didn't trust, and especially not someone who wasn't right here in my home town. But my point is, with a local artist you know, there's lots of potential for mutually beneficial relations to develop as you meanwhile have a whole lot of fun together. Keep an open mind on this, but don't give away the farm.
Discussion
9 repliesMy question is how do most of you deal with this problem?
I'm sure some of you that have been photographers for say 10 years have had to come across problem since I've only been doing this for 5 or so years.
I have accumulated a list of names of artists and sometimes a company that wants a licence for nothing dollar wise or then after I say no they have the odasity to ask to buy a small print.
I always mention to the artist that I'm glad that they were inspired any photograph and that may use it as a reference point but to not copy the work as it is protected by copyright laws. A little more lenghty but still nice and firm on lines of infringement.
Iconic stuff isn't what concerns me it is the stuff a photographer has went out exploring for miles away from nowhere or even close to home where countless hours have been spent with things that have just been overlooked or oblivious to others.
Thanks for any thoughts or opinons on the matter even if you haven't been a photog for 5 or 10 years. It sure seems like we should keep an eye out for eachother on this sort of thing but I'm sure there many nice images that have been painted from and do have permission.
I just got another email today, haven't even checked out what image it was. Hopefully it wasn't a delicate arch shot or valley view in yosemite. If it was I'd encourage them to paint it.
Since you created the original work, you own the copyright, and the photo is your intellectual property, regardless of whether the photo is iconic, or no. If any artist, using any medium, uses even a portion of your photo that is identifiable as your work without having been granted a license by you, they are in violation of intellectual property rights.
If you allow someone to create a derivative work from (say) a shot you did of Delicate Arch, and then you attempt to seek renumeration from someone who uses (say) your recent light-painting image of the trees and pond, you wouldn't really have a case, because you allowed such a derivative work to be created without permission in the past. My opinion; either let everyone do it without permission, or no one.
If you sell someone a print, include an 'acceptable use' document with it. In the document you could state something like,
"You have the right to display this single, original photographic print in your home, office, or place of business." You are not authorized, under this license to duplicate this print and/or create any derivative work from this photograph.
"If you would like to create a derivative work from this photograph, you must contact this photographer and arrange for a license to do so." Please note, that creating unauthorized copies of, or creation of derivative works without the express permission of this photographer, is a violation of copyright and intellectual property statutes"
"If you have any questions, please contact me"
If you decide to allow a derivative work to be created from one of your photos, you have the right to require the artist to give you credit for the original work, whether they paid you, or not. If they do not, they are in violation of your intellectual property rights.
-P
ps: (disclaimer) The sample text I wrote above, may not be of correct legal form. I suggest that you write up someting and have your lawyer review it before you include such with any of your prints.
-p
I have so far not found any unauthorized paintings of my images but I will not hesitate to pursue copyright infringements if I do.
Guy
Thanks Guy. After denying them the any kind of usage rights, it might help to encourage them to explore with their own creativity. I never really thought of trying to steer them into a better direction.
At least this artist has requested a pic and I will get something out of it.
I can't see an answer to this.
Be aware that lots of "artists" will balk. I figure that's a handy way to sort between the paint ploppers and the pros. We try to educate the ploppers, but some are totally resistant. Good riddance, and don't let the door whap your hiney. If they're pro's, they're aware. I imagine that we're educating the amateurs with ambitions of pro painting by drawing a hard line in the sand...er, paint....er, pixels. When we allow usage, it's purely pay-to-play and our rates are stiff. The true pro painters we deal with expect to negotiate a fee and a percentage and peripherals, but they expect to pay. They think photographers who give away their photos are downright stoooopid. I agree!
The resultant painting, with the bird as the focal point and in exactly the same pose and position as my photo, was shortly on sale on his web site...for $75,000. That was the last time I've allowed any photo to be used by an artist, without payment.
Through my website, inquiries from artists are probably number 2 or 3 in terms of frequency. I've taken to just sending out a boilerplate response to artists, asking 10% of final sales price. In nearly all cases, I never again hear from the artist.
I'm fortunate to count a very successful painter among my friends. We have a deal worked out based on a long friendship and lots of trust. He sits down at my computer simply to look at photos of particular animals or scenes, as kind of an orientation. It's great because I'm sitting with him, and the whole time we're talking business, art, photography, painting and if it's an evening session, the quality of hops used by the local microbrewery.
Our deal is that he doesn't do any drawing or sketching and the photos don't leave. If he sees stuff that he really needs to sketch for reference, it's usually parts of an animal rather than the whole. When it comes down to that he agrees to pay a nominal fee (usually $250) on the eventual sale of a resulting painting. It's an honor system, but it works for us.
If he really needs the photo and will use it directly in finishing a painting, the contract comes out and I get 50% of the sale, plus residuals.
Comparing $250 versus 50%, he's got lots of incentive NOT TO copy my work, but it's available when really needed. It works well for both of us.
No, I wouldn't do that with anyone else I didn't trust, and especially not someone who wasn't right here in my home town. But my point is, with a local artist you know, there's lots of potential for mutually beneficial relations to develop as you meanwhile have a whole lot of fun together. Keep an open mind on this, but don't give away the farm.