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Tag: copyright

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Plagiarism

Spruce and pine from Barnum Brook Trail, Carol Douglas, 12X16, private collection. This is a well-known scene painted by many artists. It would be difficult to prove ownership of a reference photo.

A well-known western painter sent me three images: her own reference photo, her watercolor, and a copy made by another artist. The copier had posted it on social media, cheerfully outlining her process with no hint of credit to the original artist. “She even copied my mistakes!” sputtered my correspondent.

Luckily, this resolved without lawyers. When challenged, the infringer agreed to take the work down and never sell it. That’s the only reason I’m not calling her out here.

Lake Tear of the Clouds (Headwaters of the Hudson), 30X40, Carol L. Douglas, private collection. I painted this picture twice.

Is it OK to copy artwork?

My correspondent was right in not asking the infringer to destroy the work. It’s legal to copy other work. It is illegal to sell, publicize or publish that copy without permission from the copyright owner.

Many artists over time have copied others’ work, including Vincent van Gogh in his time in the asylum. This is a way to deeply engage with the original artist’s technique and intentions. Many teachers-including me-set our students to copying masterpieces. But this is a learning exercise only, and the work is never intended to be shown or sold, even when the original is out of copyright.

Young spruce and pines, 6X8, Carol L. Douglas, private collection. I painted this twice because I lost the first iteration.

Pieter Bruegel the Elder churned out several copies of his own Massacre of the Innocents. It must have been very popular because his son made more copies of it. That made perfect sense at a time when the only way to reproduce a painting was to copy it brushstroke by brushstroke.

But that was then, and this is now. Copyright in the US is strict and enforceable. It’s there to protect creators, but, equally, you don’t want to get on the wrong side of it.

What is copyright?

Copyright is an inherent state that occurs at the time the work was created; registering it just provides one form of legal evidence that you created the work. For visual artists, registering every painting or photograph would be absurdly expensive and unnecessary; you would only do it if you needed to sue someone.

That means any photo or illustration you find in books, magazines, newspapers, and even on the internet is automatically protected by copyright law.

Sunset near Clark Island, 8X10, Carol L. Douglas, available through the Red Barn Gallery, Port Clyde. I’ve painted this scene multiple times, but always from life.

Protect yourself

The best way around this is to take your own reference photos. That’s important for more reasons than just copyright, starting with the greatly-expanded understanding we all have of places we’ve been to and people we’ve known.

Sometimes that’s impossible. You’re on the other side of the country or the boat has sunk. If a client sends you their own photo for a painting, you can presume permission. If it’s not their own photo, do some investigating. “He said he got the photo from his cousin,” is no defense.

If you use a third-party’s photo, protect yourself by obtaining written permission from the photographer.

You can use photos that are in the public domain. Copyright expires when the original creator has been dead for more than seventy years. Just google “public domain images” and the word for which you’re searching, like “clouds” or “Grand Canyon.” Creative Commons is an excellent source for public-domain images.

What if someone copies your work?

What if it’s your work being copied without permission? My correspondent contacted the infringer and asked her to withdraw the painting from the marketplace. She could have done this more formally through a cease and desist letter, but it turns out that she’d done all that was necessary.

If the infringer doesn’t agree to take the work down, it’s time to call a lawyer. In the US, copyright holders can sue content infringers for damages. Hopefully, it will never go that far, but it’s nice to know you have that tool at your disposal.

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Reference photos for painters

Winter Lambing, oil on linen, 30X40 in a slim black frame, $6231 includes shipping in continental US. This was painted from a reference photo of a snowdrift in Orleans County, New York.

The ‘pictures’ folder on my laptop has more than 50,000 images in it. I don’t have an easy way to count my cell-phone images, but they date back to 2003. There are thousands more photos on our server.

The vast majority of these serve no purpose. They’re not a record of an event or people I love; they’re just a visual that caught my eye while I was hiking or painting. They were quickly seen and more quickly forgotten. Luckily, when I die, my kids won’t have to lug them to the dump in plastic bin bags; they’ll be gone with a click of the mouse.

Compared to other artists, I don’t take many reference pictures at all. That sometimes proves to be a problem when I have a thorny painting problem to solve, but often reference pictures serve to confuse rather than clarify issues.

All Flesh is as Grass, oil on linen, 30X40 in a slim black frame, $6231 includes shipping in the continental US. This was painted from a photo of a neighbor’s apple tree.

Great photos don’t mean great paintings

“Surprisingly, a great photo often doesn’t make for a great painting,” Bruce McMillan wrote this week. “It’s already a success as a photo. Most of my reference photos are failures as photos, but hold the elements that I want to enhance in a painting.”

A great photo-taken by you or someone else-has already done the design work. You’re constrained in composition and color because those elements are pre-determined. That’s one reason I discourage my students from using photos they find on the internet.

Of course, respecting copyright is the primary reason. Any photo or illustration you find in books, magazines, newspapers, or the internet is automatically protected by copyright law.

Even if that wasn’t true, I’d still discourage painting from other people’s photos. When you take a picture yourself, you have felt the dirt and smelled the air of the place. You understand the depth and breadth of its space. If you’ve taken the time to make a sketch, you comprehend it even more deeply.

You have none of that with a photo you grabbed from the internet. How much do you expect people to engage with an idea that you, the artist, have no relationship with? That comes back to my cardinal rule of painting: don’t be boring.

The Harvest is Plenty, oil on linen, 40X30 in a slim black frame, includes shipping in the continental US. This was painted from my own head.

Take your own pictures where you can

Anyone can take a decent photo with a modern cell phone, as I prove every morning when I hike up Beech Hill. I was a ‘better’ photographer before I started painting full-time. My compositions were tighter. Then I realized that my best photos were cropped too tight to be useful for painting. There was always something left out that I needed.

Now when I take reference pictures, I make a point of shooting far more peripheral material than I would for an artistic shot. This is because I’ve outsmarted myself too many times by cropping out essential information in the viewfinder. Detail is generally unimportant in a reference photo, and most modern cameras (including the one in your cell phone) have far greater resolution than the artist ever needs.

Deadwood, 30X40, oil on linen, $6231 in a slim black frame includes shipping in continental US. This was based loosely on a photo taken by my friend Joe Wagner.

Flat, indirect light can be boring in a landscape painting, but it’s sometimes helpful in a reference photo. It allows you to create your own atmospherics. You’re never stuck fighting a lighting source that doesn’t work.

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Respect the artist’s copyright

Ravening wolves, 24X30, Carol L. Douglas, $3,478.00, US shipping included

Jeff Koons has done more to keep intellectual-property lawyers busy than any other living artist. He’s won some and lost more, both here and in France. Koons has also returned the favor, accusing a bookstore of infringement for selling copies of his Balloon Dogs. Their attorneys argued, “As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.” Koons dropped the suit. Some images are so universal that they cannot be copyrighted.

Koons has very deep pockets and can afford to keep a lawyer on retainer. You and I don’t. It behooves us to respect others’ copyright. Furthermore, we should do unto other artists as we would have them do unto us.

In 2011, Shepard Fairey and the Associated Press (AP) settled a case debating who owned the rights to Fairey’s 2008 Hope portrait of President Barack Obama. Fairey copied an AP photograph and then lied about it. He also destroyed evidence. For that he was sentenced to two years of probation, 300 hours of community service, and a fine of $25,000.

Rim Light, 16X20, Carol L. Douglas, oil on archival canvasboard, $1623 unframed, US shipping included

Material changes or ripping the photographer off?

What Fairey and Koons unsuccessfully argued was that they made material alterations to the original work. This is a defense, but it’s subjective, interpreted differently by different courts.

The question of material changes has as much to do with structure as it does with detail. If you were to combine five different photos of white pines in the Adirondacks into one pastiche painting, you would probably sail happily under the radar. You might even include an old Grumman canoe floating poignantly on the water, since you would have to substantially rework it to match the lighting, angle, etc. However, if you included a child in a canoe taken verbatim from a photograph of the same, you’d be stealing someone else’s content.

Copyright in the US is for created works. It doesn’t protect ideas or processes. You can’t sue for an undeveloped scribble on a card in your dresser drawer; you must have executed the work. Copyright is an inherent state that occurs at the time the work was created; registering it just provides one form of legal evidence that you created the work. For visual artists, registering every painting or photograph would be both absurdly expensive and unnecessary; you would only do it if you needed to sue someone.

That means any photo or illustration you find in books, magazines, newspapers, and even on the internet is automatically protected by copyright law.

Spring Allee, 14X18, Carol L. Douglas, $1,594.00, US shipping included

Protect yourself

The best way around this is to take your own reference photos. That’s important for more reasons than just copyright, starting with the greatly-expanded understanding we all have of places we’ve been to and people we’ve known.

Sometimes, sadly, that’s impossible. You’re on the other side of the country or the boat has sunk. If a client sends you their own photo for a painting, you can presume permission. If it’s not their own photo, do some investigating. “He said he got the photo from his cousin,” is not much of a defense.

Vineyard, 30X40, Carol L. Douglas, $5,072.00, US shipping included

If you use someone else’s photo, protect yourself by obtaining written permission from the photographer.

You can use photos that are in the public domain. Copyright doesn’t run forever, no matter what some museums try to tell their website visitors. Copyright expires when the original creator has been dead for more than seventy years. Just google “public domain images” and the word for which you’re searching, like “clouds” or “Grand Canyon.”

Creative Commons also has photos available for reuse, although the terms of use are different for each photo (and exhaustively spelled out).

Reserve your spot now for a workshop in 2025: