The Artful Jurist

An artist friend asks:

How much does an artist have to change a painting from a photo that is not his photo in order to paint it without possible legal troubles?

Well, first, anytime I get an arts-related question that starts with “How much…?” I know I’m going to be giving the questioner something less than the answer he’s hoping for. People who ask these “how much…?” questions are looking for a clearly definable threshold—a bright line rule such as an exact amount or percentage of someone else’s intellectual property that they’re able to use before the owner of that property has a right to sue for copyright infringement. It’s a good question for an artist to be asking. It’s always better to take a look behind you before you get a swift kick in the you-know-where. But, as I said, I’m afraid the answer I’m able to give doesn’t come with any absolutes. Here’s why…

One of the basic elements of copyright is the exclusive right to create derivative works from your own copyright protected property. A photographer who takes a photo has the right to use that photo however he pleases—such as putting the image on T-shirt, mugs, calendars, or whatever else. The photographer can further adapt the photo with color changes, cropping, modifications, or special effects that alter the image, itself. Any of these would be derivatives of the original work. And, as already noted, the right to create, or authorize the creation of, derivatives belongs solely to the copyright holder. So, if it’s my photo, you don’t get to make a derivative work out of it unless I give you permission.

But now the question is being raised not about utilizing the photo, itself, or a manipulated version of it, but, rather, about using the photo as a model for a painting that’s a completely different type of art. Does a painting of something that appears in a photo constitute a derivative of that photo?

Let’s take a hypothetical. Suppose you see a photo of a dog jumping into a lake. You do a painting of the photo, copying the image of the dog exactly except that, instead of having the dog jumping into a lake, you make it appear the dog’s flying through the air. Is your painting a derivative of the photo? Or is it unique enough to escape that label? Depending on how close the images are to looking like each other, one could probably make an argument either way.

So what if you also paint little wings on the dog and call your painting “bird dog.” Does that do the trick of getting the painting out from under the “derivative” label? Well, anything that makes your work look less like an exact copy probably helps. But, again, there’s still no guaranty that someone familiar with the photographer’s work won’t take one look and recognize it for what it is—a painting of the photo of the dog jumping in the lake.

There are exceptions that allow people to utilize someone else’s copyright protected images in their own art. Collages would be a notable example where the assembled image differs so significantly from the original source material that it has been assessed to be an entirely new work. But when the question being asked is how much can I use?, it usually means the person doing the asking is hoping to fall under a legal standard known as de minimis. That is, the amount of source material being used is so small as to fall beneath a legally enforceable claim of copyright infringement.

Now don’t ask me how much is de minimis. It varies with each individual set of facts. And what I’ve often told people who’ve tried to nail me down to something more specific is that there was a case where only four notes of music were determined not to fall within the de minimis safe harbor. If four notes of music don’t always cut it, then I’m not about to make any pronouncements on what does.

Returning to our “bird dog” example, it’s possible a much safer argument could be made by claiming the painting is a “parody.” Parody, which is typically a humorous spoofing of something, is considered a fair comment and criticism of the subject matter. And fair comment and criticism fall under the fair use doctrine that carves out certain exceptions to the copyright restrictions. Think of all the parodies you’ve seen of Grant Wood’s famous painting, American Gothic, with the somber faced, pitchfork holding farmers looking like they’ve just been told the market’s tanked for corn. Again, this is not an absolute for all works that copy another work. You can’t simply call something a parody and have the world just take your word for it. Something about the work ought to convey that it’s a parody.

How much does it take for something to be considered a parody?...Oh, please! Not another “How much…?” question!