Artist Request to copy my work as basis for painting

[Dave Gurtcheff]

I received an email on my web site requesting to use my work as a basis for the artist's painting My reply is below, and below that is the original request. Did I do right? Am I being conceited to protect the "look" of my work.    
Thanks
Dave Gurtcheff
Beach Haven, NJ

"Thanks for your honesty and professionalism. I prefer to not have my work copied. Perhaps an explanation is in order. I research and spend many hours to find suitable sites. I usually return many times (In the case of Holgate Bird Sanctuary, probably as many as 100 visits) to wait for the proper time of day, time of year and lighting. I then select camera position to get the composition as I want it. I sometimes bracket as many as five exposures and combine them to retain both highlight and shadow detail. I then spend hours in post processing to burn/dodge, color correct etc, as I did in my chemical darkroom where I learned my craft for 50 years. Often I do not get the sky/atmospheric effects I want. I sometimes shoot sensational skys and montage them with forgrounds that are interesting. There are several images on my site where I waited one year so the sun lines up on the water to match my saved sky from another time. So I have done all the work for you to copy. Many Artists use photography to paint from, but it is their own work.

No hard feelings I hope."

Sincerely

Dave Gurtcheff



On Sun May 31 17:31 , Jill XXXX sent:



Hi David,

I live in XXXX and really enjoyed looking at all of your LBI and
Tuckerton photos. I am an art student but do occasionally get lucky with
a sale. I wanted to know if you charge a fee for artists to use your
photos as the basis for a painting. Since people do occasionally want to
buy my work I like to check with photographers directly when using an
image that has a distinctive lighting and atmosphere that will be
recognizable. (Your Tuckerton shack photo comes to mind) I cannot afford
hefty "right of use" fees but always honor a photographer's wishes if
they choose not to grant permission for later sale of a painting
(although I may copy it for my own personal pleasure  ) Just wanted
to put this to you since your photos capture the area so beautifully.

Very truly yours,

Jill XXXX
XXXX, NJ

[DanPBrown]

I agree with you David. I've had similar requests and I have politely declined. Photography is a much more difficult medium than painting I believe. I've touched upon this subject in a recent blog post of mine.
Dan
http://www.danbrownphotography.com

[JohnBrew]

A gallery where I am represented recently began a series of art classes and said they were using my images "for instruction". IOW, they are copying my pictures. As of this date I have not responded as they are one of the best sellers of my work. Conumdrum.

[John Camp]

Yes, you were too harsh. There was no copyright question here -- she was *asking* for permission to use the image. When they ask, if you don't want them to use it, you politely say 'no,' and thank them for having the courtesy to ask. I think you sort of came off as a jerk, giving her a lecture that was not only probably unneeded, but was off the point.

JC

[etrump]

Dave,

This is obviously a personal choice and you are well within your rights to deny the request.   Personally I would have said yes because you never know who she will tell about your work.

I am not a lawyer but I don't believe Jill had to ask your permission to produce a derivative work.  It would be hard to claim she copied your work when it is a totally different medium.

She was being polite and so were you so no harm done.  

[jasonrandolph]

I think it would have been a fair question to ask her how she would feel if you made a high-rez copy of one of her paintings and sold unlimited copies for profit.  In my mind, it's like seeing "Moonrise, Hernandez" in an exhibition, snapping a photograph, then selling it.  It's someone else's work, and while you can't stop her from painting it for her own pleasure, she can't expect to use someone else's work to turn a profit.

[tom b]

I'm just about to go on a photo shoot of Smart Light – "a celebration of innovation through light art, music and ideas event". I will be taking photos of the light art installations. It just reminded me that there is a grand tradition of photographers taking photos of artists work and then claiming the results as their own art.

Having taken photographs for thirty years and painted for half that time I have a fair idea of their relative difficulties. My ability in photography is limited by the time and money that I invest in it. My ability in painting is limited by time and talent and remember you can't hit the undo button when painting. Buying sable brushes and painting on Belgian linen will not improve my painting one bit. However a significant investment in equipment and training would improve my photography.

Having said that I find painting and photography are synergistic. I paint from my photographs and looking at a composition for 10 hours improves my knowledge of the image.
Painting improves your knowledge of colour and perspective. How many of you out there can pick up one of your colour photographs and name the the paint colours that you would need to paint it. A photograph that makes a good printed image may be totally unsuitable for a painting whilst a mediocre image may be very suitable for using as a painting reference.

As for other people using my photographs for painting references I have said yes to some and no to others. Carol who has used my images has produced paintings that are very different from mine.  I have taken an alternative stance by inviting fellow artist to join me on photography trips to the Royal National Park and Bombo. I think that they have gained a lot from the experience. Perhaps thinking about how people can mutually benefit from each other's skills may be a way to approach some of the problems mentioned above.

[Dave Gurtcheff]

Thanks all for your insight. Perhaps I didn't need to "lecture" her, but sometimes I think people think you happen on a scene by accident, and snap a memorable landscape. I just wanted the (perhaps) uninitiated to know what goes into a print.
Thanks again    
Dave

[etrump]

Thanks all for your insight. Perhaps I didn't need to "lecture" her, but sometimes I think people think you happen on a scene by accident, and snap a memorable landscape. I just wanted the (perhaps) uninitiated to know what goes into a print.
Thanks again    
Dave

You mean it doesn't look like that everyday?    

Just like most other things, people have no idea what is involved until they try to do it themselves.

It just means you have a more expensive camera.    

[HickersonJasonC]

As a professional with 40 years experience, I feel in my honest opinion you were not harsh enough !!

COPYING a photographers photograph by 'painting it' is still copyright infrigement !!

It isn't copyright infringement, she was asking for the right. If she were to have copied it and sold it without permission, that would be infringement. As a professional of 40 years experience, you should understand the difference.

Undoubtedly, most of us would have said no to her request. But I think the lecture on what it takes to get that great shot was unnecessary. After all, she could have just copied your photograph without asking. You'd have a hell of a time (and spend a lot of money) proving it and collecting damages if she had.


This article I saw a couple of years ago in Harper's Magazine is apropos: http://firstpulseprojects.com/On-the-Right...Molotov-Man.pdf

[John Camp]

I may have come off as a bit too harsh in my reply to the OP's question, and I wanted to explain further.

A copyright fundamentally means that the creator of a work -- a photograph, a short story, a painting, a play -- has a right to control copies of that work, in whatever form. This can have slightly different meanings in different North American and European countries (I don't know about the rest of the world) but essentially, it comes down to control. Most people holding a copyright *want* to sell permission for use to other people -- that's the whole point of stock photography, or the whole point of writing a screenplay or a novel. And the only way those other people can signal their interest is to *ask.*

In a sense, *asking* is a fundamental part of the whole copyright scheme. If a copyright meant that nobody could produce copies but the creator, then every novelist would have to be his own publisher, distributor, financer, etc.

The OP seemed to be insulted that anyone would ask, which is a basic misunderstanding of what a copyright is all about -- a copyright is intended to *force* people to ask, and to punish them if they use the work without asking.

So if somebody asks if they can print your gorgeous piece of landscape art on their toilet paper, you can be insulted if you wish, or you can say "no," or you can ask, "How much?" As long as they don't use it without permission, there's no violation; and if the answer to "how much?" is, oh, a half-million dollars, then maybe you'd be happy that they asked.

Asking is not an insult. It's not a violation. It's what is supposed to happen.

JC

[enlightphoto]

You certainly have the right to say yes, no, or maybe as you see fit. In general, if done as part of an art class for instruction and critique, students can usually paint a copy of a photo or other image, provided it is done for the class, and kept as a single copy for personal use only, and not re-sold, or have any other copies made. That's a provision of Fair Use.

I get asked this question quite frequently. If someone wants to do a painting of my photo, and it is not for a class, I tell them that they require a derivative use license. (Just putting the image into a different medium has no effect on making something "not a derivative".) Derivative means derived from... photo to painting, photo to sculpture, photo to jello & whipped cream collage, it doesn't matter. If someone can tell that image A was derived in any recognizable form from image B, then that is a derivative use.

I'll ask a person what their plans are, is it for personal use, or do they plan on making multiple copies or selling the painting. Also, Ill ask if the image will ever be displayed at a place where the public is required to pay admission to view the artwork. Those are variables that are taken into account when determining the commercial value of a derivative use license. If it's for personal use only, I may charge a basic research / personal use license fee of $50.00 and offer to send them a full screen watermarked scan to help them paint. If they plan on selling the work, I may charge a few hundred dollars, plus charge a royalty percentage on each print sold, determined by the number to be produced, and how much they'll be sold for.

So you could say yes, & let them do it for free and make no money, you could say yes and make money, or you could say no and make no money.

Of course you were right to reply politely.  Filed under: Do unto others...

Hope  that helps.

[Dave Gurtcheff]

Thanks again for the insights. I guess this has a happy ending. Two more emails below:

On Tue Jun 2 16:30 , XXXXX (The young artist in question) sent:

Nohard feelings at all. I appreciate your honesty and respect the amount of work you put in as a photographer, which is exactly why I ask first.   I am perfectly content to enjoy your work on line or through my purchases of note cards and compliment you on your patience and truly exceptional sense of composition and atmosphere. Bravo.

Sincerely,
Jill XXXXX

My reply:

Hi Jill: Thanks for letting me off the hook. I felt a bit guilty after I sent the email, and didn't sleep too well that night. A suggestion: Come September (my favorite time to photograph...I rarely work in summer: hazy, hot, and humid boring sky and too many people). and meet my wife Sharon and I at the north end of the island. We will show you our favorite places, including Viking Village, 13th/14th St dunes, High Bar Harbor refuge, etc. Bring a camera, perhaps I can give you a few tips. I will keep your email and send you a reminder, if you are interested.

Also on Wednesday night June 16 at 7:30 I am invited to give a lecture at the SJ Camera Club in Medford NJ. It is entitled "Composition". I have not been to that particular club before, but guests are always welcome, and we cordially invite you if you have nothing better to do. The address is XXXXXXXXX,
Regards

Dave

[markhout]

That is very graceful from both of you. I am impressed with how you ended up handling this, very well done!

Mark

[Craig Murphy]

Does Shepard Fairey ring a bell with anyone?  The Obama poster?

[Gemmtech]

I must admit, I don't agree with the original post.  I go into many museums and take pictures of paintings and reproduce them (for myself).  I don't know copyright law, but I'd have to wonder if an artist paints a "copy" of a photograph it wouldn't be considered copyright infringement.  And I agree with the one post above, I believe it's more difficult to do a painting than to make a photograph.  I know, I know, you are going to explain how you have to wait for just the right lighting and the right sky and the sun to set at the "Perfect" time etc..  Let me put it another way, you have never seen a photograph sell for $100 million, hell I doubt there's been 10 photographs ever to sell for $1 million.  There's a reason for this.  Personally I would be flattered if somebody wanted to do a painting of one of my photographs because I don't believe it would affect the sale of my photos.  Now, if they wanted to make a copy of the photo and sell it I wouldn't be too happy.  I have some very nice photos of Rembrants that I could never afford.  Let him paint it, it might make you famous someday  

[Tyler Mallory]

Nice to see that an artist at least asked before just "taking" another artist's creative work.

There are two things at work here in the comparison. Painting certainly has an additional element to the craft: that of the brush applied to the canvas, but that does not make it "harder" to create a good work. In both media there is the artist's skill to impart a vision to the finished piece that makes it worth relating to and being interested in. It is not necessarily the dollar figure of a sale that sets the bar for capability of talent in any given field.

[Gemmtech]

Nice to see that an artist at least asked before just "taking" another artist's creative work.

There are two things at work here in the comparison. Painting certainly has an additional element to the craft: that of the brush applied to the canvas, but that does not make it "harder" to create a good work. In both media there is the artist's skill to impart a vision to the finished piece that makes it worth relating to and being interested in. It is not necessarily the dollar figure of a sale that sets the bar for capability of talent in any given field.

I couldn't disagree more, take a photograph of a beautiful woman (of any human) now try to paint it with the same level of detail.  There's probably not a painter in the world who can't take a photograph, but there's probably not many photographers who can paint.  You're waiting for the sun to set just right, the painter has a vision and puts it on canvas (whatever medium)  Painting has many more elements to the craft IMHO.  I think you misinterpreted what I said regarding sell price of a painting vs a photograph.  I'll explain; it would be almost if not totally impossible to replicate a painting to 100% accuracy, whereas we can make as many photographs of an image as we desire with #10,000 being identical to #1.  It would be a challenge for da Vinci himself to duplicate the Mona Lisa, again to 100% accuracy.  As we all know there have been some great forgeries done, however if you have an "original" with nothing to compare it to then it makes determining if it is a forgery more difficult.  

Photography is a craft and great photographers are artists, but there's nothing like a beautiful painting, IMHO

[gdanmitchell]

Since the person asked, you have every right to say "no," "yes," or "yes, but with conditions."

I won't get into the debate about the relative value/difficulty of painting and photography.

It might we worthwhile to ask the artists how he/she plans to use the image. I'm not an intellectual property rights expert but I do know a bit about the subject. I think that, as much as we might prefer it to otherwise, there could be some "fair use" exceptions that apply to the use of a photograph. For example, if an individual uses a photograph as the basis of a painting done for practice I don't think there would be an issue. If it is done in a class where the decision to use the photograph was a one-time case and somewhat spur of the moment, I think that fair use issues might apply as well.

On the other hand, I suspect that if the artist clearly based work on your photograph and then sold the painting, or if a class used your photograph every term the bounds of fair use would be exceeded.

So, one option might be to issue a free limited-use license to the artist specifying what is and is not OK to do with the image. You might allow the creation of a single painting that could not be sold under this license and make it clear than no use outside of that specified in the license would be acceptable without a separate advance agreement. It may seem counterintuitive but you might actually be better able to track and control use if you approach it this way.

Dan

I received an email on my web site requesting to use my work as a basis for the artist's painting My reply is below, and below that is the original request. Did I do right? Am I being conceited to protect the "look" of my work.    
Thanks
Dave Gurtcheff
Beach Haven, NJ

"Thanks for your honesty and professionalism. I prefer to not have my work copied. Perhaps an explanation is in order. I research and spend many hours to find suitable sites. I usually return many times (In the case of Holgate Bird Sanctuary, probably as many as 100 visits) to wait for the proper time of day, time of year and lighting. I then select camera position to get the composition as I want it. I sometimes bracket as many as five exposures and combine them to retain both highlight and shadow detail. I then spend hours in post processing to burn/dodge, color correct etc, as I did in my chemical darkroom where I learned my craft for 50 years. Often I do not get the sky/atmospheric effects I want. I sometimes shoot sensational skys and montage them with forgrounds that are interesting. There are several images on my site where I waited one year so the sun lines up on the water to match my saved sky from another time. So I have done all the work for you to copy. Many Artists use photography to paint from, but it is their own work.

No hard feelings I hope."

Sincerely

Dave Gurtcheff



On Sun May 31 17:31 , Jill XXXX sent:



Hi David,

I live in XXXX and really enjoyed looking at all of your LBI and
Tuckerton photos. I am an art student but do occasionally get lucky with
a sale. I wanted to know if you charge a fee for artists to use your
photos as the basis for a painting. Since people do occasionally want to
buy my work I like to check with photographers directly when using an
image that has a distinctive lighting and atmosphere that will be
recognizable. (Your Tuckerton shack photo comes to mind) I cannot afford
hefty "right of use" fees but always honor a photographer's wishes if
they choose not to grant permission for later sale of a painting
(although I may copy it for my own personal pleasure  ) Just wanted
to put this to you since your photos capture the area so beautifully.

Very truly yours,

Jill XXXX
XXXX, NJ

[Curtis Miller]

A lot of the discussion here reveals a misunderstanding of the differences between painting and photography. The artist was good enough to ask permission and clearly appreciates the importance of copyright.

A painting based on a photograph is in no way a "copy." If it were a copy it would be a pretty poor painting. I've painted from my own photographs for years. It doesn't take a good photograph to make a fine painting. A good photograph may make a very poor subject for painting.

Had the artist created a painting of any quality based on your photograph it would have been more a reflection on her skills and vision than on your photograph. You, of course, have the right to refuse an artist permission to use your work as a basis for theirs but I think you have absolutely nothing to fear and nothing to lose for allowing her to use it. The odds of there being any conflict between her work and yours seem infinitesimal to me.