Is it Wrong To Paint someone’s photograph and call it yours?

Is it Wrong To Paint someone’s photograph and call it yours?

Would you paint this without asking?

Would you paint this without asking?

Many artists, particularly illustrators, will use just about anything as “reference” and “inspiration” for their paintings, including photographs.  And most of the time, no-one will ever know just what photo or photos were used as a “reference” for a painting.  If you think about it, whether they know it  or not, artists use everything they see as reference.  It’s called “experiencing life & re-creating it.”  Just as writers (like myself) write what they know, so do artists with their paintbrush.

But then there’s that bold artist who paints EXACTLY (without re-creating) what he sees from a photographers’ copyright-protected photo.  Is this illegal?  Is it unethical?  Is it just plain plagarism?

If you asked the photographer, he would most likely feel ripped off, as he may have put his life on the line to get that photo, or swam with sharks, or jumped out of an airplane, or put in years of blood sweat & tears into his craft, just to have someone copy his hard work onto canvas.

If an artist wishes to duplicate a photographer’s (c) image EXACTLY AS IT IS (without altering it in any way) they should first contact that photographer for permission and credit the photographer somewhere on their materials, website, anything connected with that painting.  This is the right thing to do, it’s fair, and ethical.  Anything else is, well, stealing.

obama-by-shepard-fairyThere are many hotly debated blog posts on this very subject.  Here’s a good debate to review on Art News Blog.

On a slightly different topic:  There’s a HEATED debate involving the famed photo of Obama that was re-created by artist Shepard Fairy.   Apparently, the Associated Press (AP) claimed rights to the original photo that Fairy used for this artpiece.  Then, in soap-opera fashion, the story took another turn when the actual PHOTOGRAPHER came out (Mannie Garcia) and claimed that HE owns the rights to the photograph.  There’s a lot of money involved here, and many heated opinions.  You can read some of the dribble here and also here.  If you want to know what Shepard Fairy himself thinks of all this, click here.

What do you think?  Should an artist get permission before copying a photo that was taken by someone else?  Should art be freely shared and everyone love each other?  Or is it plagarism?  Give your comments below – let us know what you fine people think!

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  • michael
    Posted at 11:24h, 26 September

    someone covered a very good point, but I have another, what if there are 2 photographers taking scenery photography. the first photographer on the same day puts the tripod down and lines the legs with a step because the photographer wants to take a photo of the steps going all the way down which go towards a bridge. 10 minutes or so later another photographer comes, and they take the exact same picture. both sell their work for money. the first photographer is a famous well-known photographer and sees the second photographers photo. he decides to file a copyright claim. would it be valid?

    everyone who compares the photos sees them as the same, the same camera was used, the same lens, the angle is the same, the shutter speed, the fstop, everything.

    would they both own the copyright like how it should be, or would it be a case of well this person makes more money?

  • yecenia rivera
    Posted at 01:03h, 10 November

    If you paint a clip of a video that you paused on… is that copyright infringement… since it isn’t quiet the same because it was a moving video? would it be considered an interpretation?

  • Kay's Fine Art
    Posted at 10:32h, 22 October

    Thank you. Its nice hearing from a photographer on the issue. I agree with you if it’s EXACT photorealism then premiums d ion is needed but using the basic setting / coloring for your own work isn’t the same as exact copy. glad to here someone who’s a photographer think that.

  • Jim Woodfield
    Posted at 13:26h, 10 August

    Edvard Munch painted “The Scream.” This is a bit off topic, I know, but someone attributed “The Scream” to Van Gogh.

  • Sara Smith
    Posted at 03:53h, 28 July

    The idea that we own what we see is a ridiculous one.. All images are copied in some way, from our brain, from other people’s, from life, from our photos and other people’s photos and drawn pictures. How else do we learn to draw? We look, we see, we copy. All art is derivative and shaped by everything we see around us. There is no magic it is just brain processing what we see, while some are more skilled than others we all do it.

    This ownership thing we all have is so pathetic and just reminds me of little girls shielding their work at school. Yet their story of red riding hood that they are writing in their school book is not original because nothing is. In order to retell it they had to hear it or read it first. Many children drawing a monkey will do so because they saw a picture in a book or a photo on line, and so they copy it. Or did other children have access to their own monkey that I didn’t? I doubt it. All artists learn by copying, both their own work and each others.

    Photos are just aiming a tool at the subject and image they are lucky enough to see, yet if we were there we could see it too. That image should not belong to anyone, is my window view worth money because i can see it and you can’t? Yet any visitor gets to have it for free – no charge! I aim my point and shoot at said image and it becomes ‘mine’ really?! I can charge money for it? Apparently so, but well that is what seems unethical to me, not the fact that a person can use said photo and not credit or pay me for it. What inflated ego would give me that right? Although in law I apparently have it. A painting is different in so much as it goes through an interpretation process. Still if we are all breaking the law by drawing that monkey from our book, and must stop we must either have stunted artists by stopping and criminalising them or continue to be law breakers. We’re in the world we are, because ideas and work was shared. How ever are we to progress if we are not allowed to do this anymore due to greed and ‘ownership’? To come to agreement on anything design wise is to copy and share – how else would a pattern for what constitutes trousers get to become common place?

    I need to draw a cow and live in the city? I use a photo. I live in the country and want to draw sky scrapers, yes i look at pictures and yes I copy them because that is what we all do and always have done. Old masters copied pictures from each other and we still do that as well as from photos. Not a single artist (and we are all that) has ever not copied. How disingenuous and deceitful to pretend otherwise.

  • Nicholas Bartosiak
    Posted at 13:15h, 18 July

    Being an ameture artist,life gets in the way of my work,at times.
    Sometimes, its just ignorance,when a photo is copied.Once I realised ,the photo I had made into a very times consuming painting was unable to be shown at a festival,i set about trying to get permission to show it.The professional photographer,had no contact, address,and the organisation that ran the photo,never came back to me,from messages left.
    I think photographers ,this one in particle,took an amazing shot,which captured every thing an artist is looking for,light,shade reflection.I could see that I could have spent a year down town,with a camera,risking being mugged,and never got that split second photo.I think the main problem here is,that photographers take thousands of photos,and cant be interrupted by people seeking permission,to use their photos.

  • David Tarrant
    Posted at 12:14h, 30 April

    Painting a landscape of Snowdonia mountains from a photograph how could it be proved I dident go to the place myself and paint it or take the same photograph that image will be painted and photographed by 1000s of artist may all be slightly different but same view

  • Jen
    Posted at 12:17h, 23 January

    It all comes down to respect. Do you… think it’s fine to take someone else’s work and make full exploitative use of it your own gain?

    Lifting off of other’s work and making a near copy of it and selling it is exactly that.

    Personal study and for you to keep in your discard pile? NO… not as big of a deal.

    Always respect others and their work and you will have no trouble with being called a “THIEF.”

    There are very few and rare exceptions where someone just so happened to have the same precise idea.

    Regardless, give them the credit they deserve!

  • DJ
    Posted at 12:48h, 15 September

    Copyright infringement is one of those places in the law that the more defined you try to make it, the more ambiguous those definitions truly become. If an artist taking a photo off the net and painting it precisely as he/she sees it is copyright infringement, then is the inverse not also? Is a photographer at an art gallery taking pictures to promote said gallery not also copyright infringement? Many would argue no, but I say, “Why the double-standard? Does the artist not have at least as much right to his/her own work as does the photographer?” It’s one place that is very touchy to many people, yet so many times it is once again thrust to the forefront of societal awareness by a single, high-profile case, only to be subsequently swept under the proverbial rug once again. Now, admittedly I am not an artist, nor am I a photographer, but I know a number of people who are one or the other. Also admittedly, I am expressing my opinion, not any kind of researched, factual evidence, or any semblance thereof. But, I feel that a good rule of thumb should be “If the image, object, or idea isn’t originally yours: Ask.” The worst that can happen is the owner could say ‘No’ or just ignore the inquiry. If you don’t ask, there are a slew of legal issues that would most certainly outweigh any potential financial benefit that could be derived from the sale of any kind of work based off of an infringement of a copyright.

  • sig
    Posted at 03:17h, 07 August

    I am both an artist and photographer and I don’t agree. Not in the slightest. The law is just plain wrong here. It takes blood sweat and guts to paint a picture. Many paintings look like photographs because artists remember detail so well. This is not a copyright infrigement in my view, if it was then we should simply charge people to view photographers and not display them at all. Its ridiculous. If I painted the view from my chair right now I would be breaking so many copyright laws it is ridiculous. Let painters paint. Whether its a photograph or not, it doesn’t matter, it is a compliment to the photographer not stealing. If however, it is used simply as a printing device to sell huge numbers then I would have a problem with that. But artists paint what they see, that should never be a crime.
    As for protecting photographers work – the image is never their own anyway – if it contains faces etc, you cannot own that. You cannot own anything you take a picture of. However, you can own the image, and you can copyright the image and protect it from being recopied and sold, but this should never include penalising other painters and artists. A photography may use a painting for inspiration to recreate it in his photo – is that copyright infringement? I don’t think so. If I painter is particularly good and can recreate things amazingly precise, should he be penalised over someone who copied in an abstract way?
    Copyright laws are getting ridiculous seriously. Soon we won’t be able to take a photo/draw anything because someone owns everything. Its just really silly. Sell your work, make a profit, have people credit you, but don’t jail/fine people for expressing themselves creatively – that sux. Straight photo copying/printing/selling, illegal yes, but not creativity. We have the same problem in the music industry too with samples or just simply hearing and recreating some music you’ve heard maybe 20 years ago. Does that make you a criminal? Some people think it does – but creativity has to move forward, no matter what laws try to contain it. Photography will add to artistry and vice versa forever and without that things can’t move forward and grow to create new and better things.

  • Dempster
    Posted at 09:38h, 09 September

    I learn a whole lot of blogs not long ago and yours is one of the best. I enjoy reading your posts – clear and well written. Your page goes straight to my bookmarks. I bought some nice inspirational thoughts after reading it.

  • Glenn Humphrey
    Posted at 07:33h, 03 September

    Lastly how is a painter going to paint a scene from inside the tube of a wave?

  • Glenn Humphrey
    Posted at 07:30h, 03 September

    I am also an artist and would like to know, what about the surface you paint on? If you change a photo from flat to round in its shape how many percent points are taken off? Or what if I decide to paint the beach scene on a rock the picture changes shape and form dramatically? What if I go the the very spot the photographer took the photo and painted the same scene? I would look like the same thing but not off the photo.

  • Kevin Moore
    Posted at 15:21h, 13 July

    I have done interpretations of others art as you know picasso and other great artists have done renditions of each others work…like sitting and viewing the same model from the same perspective. If I use a photograph and try to paint the image it never looks just like it…Am I a poor painter 😉 I don’t think so. But I will say if you can get permission it is probably the best idea, especially if your going to try to recreate with photorealism…which very few people can or even try to do anyhow… so I think for the most part this is a non-issue. Of course you can’t photograph someones art work and sell the prints because that’s an excact reprodution of there work…the other way around…If a painter can produce an exact replication of a photograph with paint an canvas. Wow, what a great painter. You think Vangogh painted the scream from a photo? The photographer probably wouldn’t have thought it plagurism…

  • Peni Baker
    Posted at 07:22h, 24 March

    I’ve been trying for a year to get permission from news photos and celebrity photos to paint paintings from the pictures. I have not received a single yes. I don’t even get a responce. They don’t want to be bothered. I’m a realist painter and just want to paint beautiful people or very important news photos like some from the Haiti Earthquake. I’m frustrated about all of this. I even wrote the white house asking to do a paining of the family or any member of the family or anything for the country that they felt might be important. I didn’t even want money and told them so. I just wanted to do something important so it would be in my art background. Very frustrating. Art by Peni Baker

  • Maria "Spunk" Brophy
    Posted at 18:30h, 09 March

    Hey Matt, great question. If in doubt, get permission from the photographer or artist before using their image. However, if you are just using it as inspiration but creating something new of your own, than that’s okay. Artists get inspiration from everything they see. What you have to be careful not to do is take someone’s photo and closely reproduce it without asking first.

  • Matt
    Posted at 16:13h, 09 March

    Hi guys, I’m very intrigued by all your comments. I paint t-shirts and occasionally use a pic off the net as a guide, I try to find a copyright-free image as much as possible but sometimes it’s too hard to find the right one. Now my work looks nothing like the original image in all cases. Would you conider this a breach of copyright? I look forwarf to your comments.

  • Kelly
    Posted at 22:45h, 06 November

    I feel that copying the work of someone else (photography or other media), and passing it off as your own is both plagiarism and copyright infringement. As for work like Andy Warhol, it falls into the realm of commentary, such as when parody reflects the media. There is a difference between a counterfeiter profiting from pretending to be the original artist and Warhol making social commentary.

    I draw from life these days because it dawned on me that copying from photographs makes one a weak artist. A copyist. I would equate it to riding the Tin Lizzies at Disneyland and considering yourself an excellent driver because the center rail kept you from driving off the pathway.

  • Ron Croci
    Posted at 12:33h, 13 May

    I have had my paintings copied completly. For example, I go to a surf shop on PCH by Topanga. There on the wall are three oil paint copies of three pieces of artwork that were published in Surfer mag. when I worked for Hawaiian Surf. They were framed, my name replaced by the painters name and for sale for $300.00 each. well, I asked the owner and he gave me the persons phone number. So I called and a sweet little girls voice answered, and she replied to my question, if she was the artist, yes she says. Oh, I just love your paintings, and I want to be an artist, so I copied them, also I needed some money, and I didn’t think you would care. What could I say? Go ahead darlin, and good luck.
    However, other than that, copieing photos and saying that they are your own art from your own imagination, is just plain stupid. No one will care, because art is a combination of craft, and imagination, niether of which are there. But, I’d do it for enough money, so, again, what can I say?

  • Cam
    Posted at 12:03h, 08 April

    I am wondering how you feel about an artist using part of another artists work that is copyrighted? Is this also stealing? What if it is OBVIOUS that they “took” if from another source. But the rest of the picture is different. What do you think?

  • LiquidsCourage
    Posted at 20:47h, 01 April

    maybe I am not understanding, but what about that picture(the art re creation) says that it was a direct modification of this supposed original photograph. I think it is possible someone else(that has the chance) could have taken this photo. Not just Mannie Garcia. As soon as the photo is modified (transfered to paper), and is not a photograph anymore it is not in any way owned by anyone but the artist who created it. Unless Shepard Fairy says that he directly used Mannie Garcia’s photo as a template……or someone witnessed this, this is a futile arguement.

  • Charlotte Quinn
    Posted at 09:01h, 31 March

    I am a batik artist, and work from my own photos and/or do research then sketch it all out. I was once contacted by a mother of a local pro surfer who insisted that the piece in question was her son, and how much money had I been paid for the mass production. It was not him nor did I receive any money for the use of my artwork. I had won a local phone book contest, and my artwork had been chosen for the cover. Needless to say she had called looking for money. I however was flattered that she was so insistant that it was her kid. But upset that she just tracked me down to just ask for money. That… made me sick.

    More recently I was inspired by a book/movie/soundtrack and used the profile/stance in a batik. But changed it to express my views. I still find inspiration each and everytime I read/watch/listen to the work that inspired me. Thought of sending it to the singer to do with what he wished… auction it off for charity or something.

    As for my view on this topic, I think an “exact copy” is cheating, contact the photographer. If you change it more than 10%, and put your own spin on it…then they shouldn’t have a huge issue. Artists, myself included, are INSPIRED BY EVERYTHING around them… some “egos” should lighten up.

  • Andres
    Posted at 21:34h, 30 March

    Everyone has an opinion. A photographer is an artist in his own right however someone who has the talent to “copy exactly” as you put it is simply practicing a style of art which is taught at every art school called Realism.
    Wikipedia defines Realism in the visual arts as the depiction of subjects as they appear in everyday life, without embellishment or interpretation.
    I do not have a problem with an artists who employs this style, I even think many photographers would not have a problem with this for it is a form of flattery. However if they choose to paint a picture that is copyright protected and mass produce it, money changes everything. I think what it boils down to is that people are greedy and want money. If the item is mass produced like Shepard Fairy and money is rolling in, that creates a lot of attention. Contact should be made and permission granted before the production.
    The law allows artists to use copyrighted pictures if they alter it by 10%. Once altered it becomes the artists creation.

  • Maria "Spunk" Brophy
    Posted at 12:51h, 30 March

    Here’s an example: You get a commission to paint a beach scene of your client’s favorite beach spot in Barbados. You look through a travel magazine and find a great photo of the spot. You paint it, exactly as you see it, on canvas and sign your name to it. Then you decide to sell prints of it. All the while, you never thought to contact the photographer, who owns the copyright to the photo.

    This is what I’m talking about. It happens a lot, believe it or not!

  • Cam
    Posted at 12:15h, 30 March

    I am a little confused are you saying they print the exact same picture and reproduce it in water color somthing like that? Do you have examples of which artists? I would like a better idea of what you mean before I sound off on this debate.

  • Maria "Spunk" Brophy
    Posted at 11:55h, 28 March

    It’s funny – when I first wrote this article, it didn’t include anything about Shepard Fairy. It wasn’t about him at all – I included the debate on Shepard Fairy as an afterthought.

    This article is about artists taking a photograph and copying it, on canvas, EXACTLY as it is in the photograph. Something that Shepard Fairy, to my knowledge, does not do.

    After being reamed by many Shepard Fairy fans (I am a fan, too), I want to be on record as saying that I don’t feel that Shepard’s appropriation of imagery and what he does falls under “stealing” photos.

    It’s the artist that takes a photograph then duplicates it EXACTLY AS IT IS, calls it his own, and sells it, that I’m addressing here.

    I’m amazed at how passionate people are over this debate! I had no idea it would spark so many opinions. But I’m glad it did.

  • alex weinstein
    Posted at 11:36h, 28 March

    shepard’s appropriation of imagery found in the public domain is vital to his output as an artist. anyone with even a cursory sense of his work should understand this. i think of his work as being cyclical, like a revolving door: he finds his icononography in the world around him; takes it home and reworks it; then releases it back into the world as a poster, sticker, t-shirt etc. for me, he’s a very public and democratic (read: sharing) artist. comparisons to warhol are fair enough since shepard’s working directly from a POP tradition. his method is not new; duchamp, rauschenberg, lichtenstein, johns etc have all thoroughly covered this terrain decades ago. it surprises me that as a society we fail to acknowledge shepard’s work as being his own, no one else’s.

  • Roel Deden
    Posted at 05:21h, 28 March

    All Obey Giant.

  • Drew Brophy
    Posted at 13:08h, 27 March

    Shepard image captures something the photo does not. And does it matter, it is Obamas face not the photographers. It has been an interesting debate, where would we be without the overload of photos and video? Some artists like Shepard and Warhol are able to see through the chaos and strip things down to its basic form, I think people need that, otherwise they might miss the most important parts. No one would have noticed the photo until Shepard got a hold of it and made it his, it made people stop and look at it. Shepard the Photographer and Obama should be stoked, after all it took all three of them to make that iconic image at the right moment of time. I love Shepards work, I hope to meet him one day.

  • Roel Deden
    Posted at 12:17h, 27 March

    Haha, i made that image on my board to. for me it was my first paint just practice. at one side i think that if you make money out of it its illigal but on the other side it is far more popular as an artwork and the artist deserves some credit. i dont know wat to think, i know that i wouldn’t be happy if i was the photographer.

  • Jason Murray
    Posted at 09:19h, 27 March

    Any artist who creates an artistic rendering of a photographic image should first get permission of the original creator (photographer) and if there’s an intention to then re-package, sell or profit off of the newly created piece, should work out a compensatory package with the original creator. There are copyright and intellectual property laws in place for a reason and even they are not strong enough at this point. By law, I believe that you only have to change an original piece of art by 10% to make it your own. So, there is the law and then there is also the right thing to do. How would you feel if someone took your art, changed slightly and profited off of the new “art”?

  • Darin D'Onofrio
    Posted at 15:56h, 26 March

    I believe that if you put yourself in either person’s position that you have to understand, at least a little, why they feel the way they do!
    With that being said I also believe that the painter did consciously use another person’s artistic product, which has already been in the public eye and has received recognition, to create the painting. Therefore, the painting, though it may have the painters influence and style incorporated into it, is still not an original piece of art and calling it his own is a travesty that he himself should know, deep inside.
    My opinion is that the painter should have gotten permission from the photographer or rightful owner of the picture before circulating prints or selling the original. How would the painter feel if a photographer took pictures of a painting he had done and started selling the prints as his own? The more I write of this the more I am convincing myself that the photographer owns the artistic right to the image.

  • Billy Leaseburg
    Posted at 11:20h, 26 March

    One good example of “appropriated art” is Andy Warhol.
    Sometimes you need a good photo reference, but if youre just going to copy it, then save the time and effort and just use the photo.
    I agree that Art is the Artists perception of his/her life, times and beliefs.

  • Matt
    Posted at 11:05h, 26 March

    Let me say first that I am not an artist in any form of the word…this is only my opinion on the matter. I feel that the artists rendition of the image is their own art and as such is unique. Take the Campbell Soup cans that Warhol did. Some artist created those original designs but Warhol put his own spin on the image. As he did with images of Marilyn M and others, quite famously too.
    We have become a litigious society where everyone is looking for the easy route to fame and fortune. Shepard took and image and made it his own using his unique style to do so. The photographer used their medium(photography) to create the image and were happy with it. Everyone needs to take a deep breath and calm down. It’s art in one form or another.

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