• Gerry

When in doubt, throw it out!

So, there I was, minding my own business, living an uncomplicated life, retiring from nursing to enjoy the simple life of an artist. (Cue the violins and birdsong!)

Brother was I wrong!

Copyright law is a booger to grasp and even harder to try to hold onto – and that was how it was meant to be, apparently. We all know that jurisprudence is up to the interpretation of the law, and this is the bedrock of the copyright laws. Now mix in the internet with social media and you have the makings of the perfect storm. This year, hundreds of songs, books. plays, photos, paintings and other art works with a publlishing date of 1923 will be placed in the Public Domain. "Yes we have no Bananas" is just one of them.

No Virginia, you cannot use a picture to copy just because it’s floating around Facebook.

In order to clarify this slippery slope for myself, I decided to go in for the deep stuff to figure out if I can really use something as a model to paint. I am going to try to present it here in a logical form, but don’t sue me if it’s not right. I suggest you fact check me with your own research. To help you with your research, I have attached this link to a very inclusive article on this subject:


So, here is my non-simplified simplified explanation and check list of the copyright laws as it related to sketch artist’s rendering a picture from a photo or another painting.

1. IMPORTANT: If a picture shows up in social media, it is not free for you to copy and then sell. It’s not ethical and it’s complicated.

2. Any time someone takes/makes a picture, it absorbs United States Copyright protection without any other actions on the part of the creator. It becomes intellectual property of the person who created it. Of course, you can apply for an official copyright, fill out all the paperwork, pay your $35, etc for additional protection by the law, but the basic copyright protection is there automatically. For works created in the U.S., copyright lasts from the moment a work is created until 70 years after the death of the author, except for works produced by a company/employer in which case the copyright lasts 95 years from the date of publication - and if the Federal Gov created the image, it is never copyrighted.(Just don’t take this as written in stone. Those dates will vary and change according the law and depending on type and content)

3. If you want to use a picture as a model you need to ask yourself several questions:

a. Did I take this picture? If yes, you have nothing to worry about. Use it!

b. Did someone else make this picture? If yes, then put on the breaks and begin a search:

i. Who is the original creator of the picture

ii. What is their contact information. Ask them for permission to use, or pay them for the privilege

iii. If you cannot find the original creator, ask yourself this “How lucky do I feel?”

iv. When in doubt, throw it out.

v. UNLESS…its for FAIR USE. Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. It cannot be stressed enough: fair use is a gray area.

There are four factors to consider when determining whether your use is fair:

· the purpose and character of your use

· the nature of the copyrighted work

· the amount and substantiality of the portion taken, and

· the effect of the use upon the potential market ($$$$).

Examples for clarity so pay attention:

An artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

Again, parody is given a slightly different fair use analysis with regard to the impact on the market. It’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it’s not the same type of loss as when an infringer merely appropriates the work. As one judge explained, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)

In addition, you will have a stronger case of fair use if you copy the material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression. When you review fair use cases, you may find that they sometimes contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments, often affected by factors such as a judge or jury’s personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.

For example, in one case a manufacturer of novelty cards parodied the successful children’s dolls the Cabbage Patch Kids. The parody card series was entitled the Garbage Pail Kids and used gruesome and grotesque names and characters to poke fun at the wholesome Cabbage Patch image. Some copyright experts were surprised when a federal court considered the parody an infringement, not a fair use. (Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031 (N.D. Ga. 1986).)

If you managed to get through the above, and you are still hell bent on using this photo, more questions will come up.

vi. Is it Royalty Free (RF)? This does not mean the picture is free. It means that the picture can be purchased, or a license to use obtained for limited/unlimited use. Stock photos offered by Upsplash, Pixaby, etc have free use photos that are offered by the creators, and others that require payment or stipulate authorship acknowledgement by the creator if used.

In photography and the illustration industry, it refers to a copyright license where the user has the right to use the picture without many restrictions based on one-time payment to the licensor. The user can therefore use the image in several projects without having to purchase any additional licenses. RF licenses cannot be given on an exclusive basis. In stock photography, RF is one of the common licenses sometimes contrasted with Rights Managed licenses and often employed in subscription based or micro stock photography business models.

vii. We are almost done. There is another called Creative Commons License. The creator will give permission to use a photo, as long as it is not changed in anyway, or that credit is prominently given naming the creator and the source.

viii. The last one I that surfaced was Public Domain. When all the copyrights are expired, or the person or persons (family) holding the copyright have relinquished the copyright, or have died, you are permitted to use as you want. The Library of Congress has an extensive collection of expired copyright material. Https://www.loc.gov

I hope all of this has clarified whether or not you can use a particular sample as a model. Drop me a line and let me know if this helps

Until next time....


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