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NykolaiAleksander — Reference Photos and Copyrights
#artwork #copyright #copyrights #educational #painting #pe #photoreference #photoreferences #projecteducate #photobashing
Published: 2020-01-26 09:00:03 +0000 UTC; Views: 5307; Favourites: 67; Downloads: 0
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Copyright Weekend
Oh, that age-old saga… a tale of woes and witch hunts, of legal nightmares and people getting their knickers into a twist.
While some sorrowfully misguided people adamantly claim it is cheating to use reference photos, the majority of the art community agrees: Reference photos are a must-have when you want to paint something you have never painted before, and to paint something you want to get right, even if you have painted it many times before. Because, how can you know what something looks like and recreate it truthfully when you don't know what it looks like? - Exactly. You need references.
While some say a true artist should go out and paint from life, this is easier said than done in most cases, and definitely does not define what 'a true artist' is. So photos become the next best thing. In fact, one might even say they are the better thing, with the internet and magazines and books offering a visual library that no life drawing fanatic could ever dream of having at their immediate disposal.
But what are the legal implications when you use photos that you did not take yourself? Namely photos that have not been declared royalty free or are in the public domain (no, finding a photo on Google does not mean it is in the public domain).
Let's do some investigating, shall we?
What is a Reference, exactly?
Before I go into the nitty-gritty of it all, let’s look at what the term ‘reference photo’ actually means.
Do you use a photo as a reference, or do you use it to copy what you see?
What is the difference, you wonder?
Well, using something as a reference means to look at something to get a better idea of what it looks like. That is to say, you simply use a photo to gather visual information: the shape of a butterfly wing, the colours of a bird, the intricacies of a braided hair style, or the dynamics of a waterfall. Then you go and paint what you wanted to paint based on that information. Perfectly legal, by the way, as you are drawing from the overall knowledge gathered through visual aides.
What it does not mean is copying exactly what you see in the photo, creating what is known as a derivative work.
Still not quite clear?
Here are visual examples:
- The photo on the left (shot by me), and the painting based on it. This is a derivative work. You might argue it is not the same as the photo, because of a different overall texture, removal of background parts, etc, but I’m afraid that does not count. The painting is a direct copy of the photo.
- Also a derivative work. Not of a photo, but of a painting by a living artist (more on that further down). And it makes no difference that it's a guy in the copy rather than a girl, or that the colours are slightly different. The image is still clearly a copy.
- The photos used as reference, most of which I found online while searching for specific things such as 'Thranduil' or 'ceremonial kimono', and the resulting paintings. While the poses and faces of the male models were clearly copied from the photos (shot by me), the clothes, backgrounds, hair styles, and essentially everything else, was not. Therefore, these are not derivative pieces of work. At least as far as photographic references are concerned.
NOTE: 'Tar-Mairon' (top) has two designs in it derived from copyrighted material, namely Sauron's helmet design from the LotR films, and the Tree of Numenor/Gondor. It is fan art, after all. To read more about fan art and copyright, you can do so right here .
Is doing Derivative Works illegal?
Well...
Overall there is nothing wrong with creating derivative pieces. In fact, one can learn a great deal about a lot of things such as lighting, composition, and colours from doing this. You might even say it is the modern equivalent of a Master Study (also often referred to as a Master Copy). Master Studies are still done in art schools, where you are asked to paint a copy of an old master painting for the purpose of learning about various painting techniques.
[ image from this article regarding Master Studies ]
However, Master Studies are always clearly stated to be exactly that. You do not take credit for the idea or the image. You can say you painted it based on whatever more or less famous artwork, but that is it.
The same goes for derivative works of photos that you found online, or in magazines, or books. Not your idea. Not your image. All you can say is you painted it based on this or that photo.
Now, while old Master paintings (read: paintings by generally long-dead artists) are often in the public domain - often, not always! - due to their copyright having expired, that is not the case with works by living artists, or with photos, unless clearly stated otherwise. And this is where the next step comes in, unless you feel perfectly comfortable getting smacked with a DMCA take-down or a Cease and Desist notice...
Always try and seek Permission
So, what to do if you see a photo that is obviously not in the public domain, nor a royalty free image, and you would really like to use it for a derivative piece of work?
Ask the photographer or artist if you may do that. In 95% of the cases, the original copyright holder will say yes. Yes, even high profile ones. Photographers and artists have websites, and usually those websites will give you a means to contact them. Explain your intentions, including what you would like to do with the finished artwork, so they can make a quick decision and don't have to waste time going back and forth with messages.
PRO TIP: Email.
While places like DeviantArt are great for discovering artists of all kinds, contacting someone through DeviantArt’s notes or comments is not always a guarantee that the artist will see your message. - From experience I can tell you I do not always check my notes or comments, because I am too busy to do that. And that means I miss things, including permission requests. So, to be on the safe side, email them instead. If their email is not listed on DA, their website address likely is, especially if they are a professional who uses DA mostly to reach out to a wider audience.
And that would be it. There is no other way.
Sure, you could just credit the photographer or artist when you post your work online, but even that is not legal. They can still serve you a DMCA take-down. Ice cold. With a frosted cherry on top.
What about Photobashing?
Yeah. I knew you'd ask.
For those of you who don't know, photobashing is the art of using parts of photos and arranging them on a half painted canvas, almost like a photo collage, then painting over them to fully work them into the painting, creating a wholly new and original piece of work. The technique is often used in concept art, to speed up the process and still get realistic results.
From a purely legal point of view, it is a grey area.
Most of the time, the parts of the photos that were used are not even recogniseable as being from those photos anymore. Therefore the resulting work can be classed as transformative, so that it becomes a new work with its own copyright, and thus falls under the fair use exceptions to copyright infringement.
If you need to read that again to let it sink in, please do.
Of course there are websites catering specifically to the photographic needs of photobash artists, such as Photobash.org . So hold your horses before you nark at someone for their artistic technique.
Selling Derivative Works
Ah...
Selling prints or other merchandise of such a piece would be illegal without the written consent of the photographer or artist whose work you copied, and often also the model if you painted a person. The same goes for the use of such a piece in any other commercial setting, for example in magazines, as ads, book covers, or even including it in an exhibition or an art book that showcases artwork (i.e.: 3Dtotal , Spectrum ).
Well then...
That's it. Okay, not really, but if I do not stop here, this might turn out to be a terrifyingly long and even drier article. And I am not a lawyer, just an artist who's had to wade through her own share of legal counsel, write Cease and Desist letters, and file DMCA take-down requests. It's no fun. And art should be fun.
So take this article to heart, share it, and don't shout at people when they make a mistake. Explain it to them. It makes a world of difference.
Related content
Comments: 42
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This is such a great article! Such an important topic that a lot of people still don't know enough about. Thanks for writing this!
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I'm glad you think so! Thank you!
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You're welcome! I'm glad you found it helpful.
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How do you know for sure if its a copy? Can two people truly have the same idea. I think so. Hell I found out someone younger than me and someone who also hasn't been on this site as long as me 04/05 first account (deleted account) her 07 is using an idea I have had and am using still for a character overall looks and setting feel the same and is capitalizing on it as an cosplayer and an actress. Something I wanted to kind of do to hype my series up if I ever launched it. I just never talked about it or put it into motion.
Yet one can say princess hair is unoriginal/derivative as well as fantasy characters with certain facial or body assets since they cater to popular form in that area of art? While I felt crushed , devastated even, and now I myself am worried I will be called out by a larger artist or her fanbase of 10's of thousands for "copying" as I grow my watcher base- of a humble 400, I've not had a lot of success until recently with this site. I feel am the originator of the idea because for me that was original from me from imagination- (since I had this idea for the longest time that references were a no no - toxic DA bs) My paper trail goes far back as 99 to 01 where I was in designing phase and settling, she 07 long after I had finalized. I didn't even know she was on here until I was surfing pinterest for home decor ideas and her photos started popping up for recent tag searches. Does being a small unknown artist put me at risk for online attacks and humiliation and credibility loss? Hell I even go out of my way to not look at art that much for fear of unoriginality over the years. I sure as hell don't want to be slapped with a dmca despite having the idea first. In this world it seems money talks and being poor doesn't help. Sorry if I'm being cynical.
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This is not about having the same ideas, or similar attributes within a design or concept.
A copy is a direct copy of an existing image (or design). Even if two people have the same idea, the execution will always be different within those ideas. A girl with a raven on her shoulder, for example. Done many times, by many artists. Those are not copies of each other, unless two look pretty much exactly alike. Neither is princess hair a copyright issue. Or a pink off the shoulder dress.
Copying in the context of this article does not mean ideas. This article deals with the copyright of images. That is, as outlined in the article, whether or not it is legal to copy from photos or artwork without written permission from the copyright holder. Examples are given, and should be clear enough.
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I agree but when you have so many people out there that don't understand that difference and refuse the truth what do you do in those cases? I see it so much online its a deterrent for a lot of people to even want to post work. For me for a long time as well.
Sorry for the inconvenience on the question. Thank you for the article though. I really liked it.
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I tend to just ignore it. And that is really all you can do, because people often just want to be right, rather than have something explained to them. And there never is any discussion to be had with people like that. It's the same with those who say using any kind of reference is cheating, or not art, or that using it is bad and hinders your progress. All complete and utter nonsense.
And no worries. I'm glad you did! ^^
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Thank you again!
Hey there, one of the best and most helpful articles I have seen in a very long time. Something I will be linking people to as a reference. Thank you!
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Thank you! I am happy you think so.
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Very interesting and good article! And I love the deer GIF 
Might be an idea to include some links to sites with royalty free photos (such as pixabay, unsplash, pexels, etc.)? These sites are extremely useful for someone like me who sells derivative works.
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Nah. People know about those sites, and even there, copyrights and licensing come into play in most cases. The article was not written to serve as a database for reference photos. It was written to explain the copyrights of photos used as referenc material.
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Just to show me as an example...as a GOOD and as a "BAD" one.
Me using reference photos (mostly from Pinterest) to create my own artwork
And then me as a "bad" example...just being lazy and taking a photo to make an artwork based on it...those were made for the world watercolor month challenge in 2019.
The problem with the latest one (besides legal and so on) is when people comment me on composition or color sheme, that it's wonderful. Which is of course not mine, because I copied it from a photo...not a 100% accurate copy, yet the similarities are very well visible. 
I do try to answer the commenter that it's all thanks to the photo, but I think I still don't state it more clearly in my artwork's description box. 
I'm one of those people that get so much inspired by a photo that it makes me want to paint it. I know! This should never be an excuse to make a painting based of any kind of photo you find on the internet, or book, magazine etc. The only saving point for me is, that I'm not selling my paintings. Nor do I claim that the painting is my idea.
But I still have a lot to learn as a person and as an artist
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As said, there is nothing wrong with doing derivative works. I, too, sometimes get inspired by a photo I see - usually a face in that photo - and want to paint it, and then do. There are so many grey areas in regards to the usage of photos as reference, or rather as copy material, that the article would have been half a book had I put it all in.
Suffice to say that as long as no money is made with the copied artwork, you are usually going to be okay. You'd be surprised though how happy many photographers are when you tell them you'd like to paint their photo because it inspired you. It's great. Because you never know, they may get inspired by your work as well! ^^
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In case I know the photographer I should really ask them.
But with Pinterest as my main source...it's kinda tricky. But it can work for DA!
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It can work for Pinterest as well. You simply do a Google Reverse Image search with the picture you want to paint, and see what comes up. ^^
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Great one, and couldn't have come at a better time for me!
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Awesome! Glad you like it!
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great article! Gave me a lot of food for thought, that's for sure.
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Thank you. ^^
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Nice article! If anyone is after reference photos on DA that photographers have given an okay to use- I will point you here
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At a quick glance, your artwork looks more original to me than copied.
If you mean the celebrity portraits that you likely used photos for to get their likeness right, that is one of those grey areas anyway, as a celebrity's (or any other person's) face is not copyrighted. Only the photo is. But I see nothing in your gallery that would scream "copied 1:1 from a photo" at me. So... you're likely in the clear, or at the very least in the grey area which I also mentioned in the 'Photobashing' section.
The first two examples I gave in the article of direct copies, that's usually what is meant by "copying". Had I just copied the figure in the first one, to get his look right, and then drawn a totally different background and generally made it into something very different than what it is in the photo, then it would not be a copy anymore. However, just adding a flower for example would not be enough to make it not a copy.
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See... the thing is, references are NOT a bad thing. No matter how skilled an artist is, they generally still use references for stuff. This whole idea that an artist needs to know how to draw everything from their head is as stupid as it is preposterous.
And if you look at the article again, references are not the same thing as "references" (copying from a photo exactly what you see). Referencing is perfectly legal. No need to ever ask for permission or state your sources. When copying however, that's when you should try and get permission first.
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Exacty, none of them did. Eventually they knew how the human body looked, and were able to do quick sketches without looking at anyone, but for their detailed work, they always had models. Always.
It takes a lot of practice to see things right. You'd be surprised to hear that if I told you to draw a glass - a glass I put in front of you - you would likely just draw half the glass that is in front of you, and the rest would come from your mind, because your brain would be telling you "I know what a glass looks like!" So teaching the brain to not interfere, and letting your eyes do all the work, takes some time and practice. A lot of practice. Using photos as reference is easier in that sense, as it is already in 2D. And it doesn't move. Everything is a constant in a photo, from the light to the angle of a head, and you can take your time drawing it.
There is nothing wrong or lazy about using grids. They are a tool. Many of the old masters used grids, others used projection (yes, even in the Renaissance), and so on.
Here's an article I wrote some time ago about all those things:
All the Little HelpersTraditional Art Basics
"Where do I start?"
That’s probably one of the most asked questions when it comes to drawing or painting. There is no real general answer to that, as the starting point depends on what you would like to sink your proverbial teeth into - landscapes, still life, portraits - and how much exposure you have had thus far to traditional mediums.
Most people are comfortable with a pencil and paper, so usually, that is the first thing everyone goes for. And that is perfectly fine - in fact, it is ideal. Why? Because they are easy to handle, and easy to work with. At the beginning stage it doesn’t even matter what type of paper, or what type of pencil you have, so snatch some run of the mill copier paper and nick a pencil from a hotel room, and you’re good to go. You won’t be drawing masterpieces just yet, so it really doesn’t matter. All that matters is to get you drawing.
The thing about portraits is, if you want them to look like the person, you need to stick to the reference photo quite precisely. If you want to do a fictional character, grab photos of people that are taken at the same angle and stitch it all together. Use the eyes from one, the nose from another, the lips from a third, etc. Just make sure their expressions match - a smiling face looks so much different from a neutral or frowning one. There are so many ways to go about doing that, and eventually, you will have enough information stored in your art brain to be able to go "Nope, I am going to change the expression a little!" without needing any reference. ^^
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Mmmhmh, that is a very common thing. The trick is to not compare your art to that of others. It can be very diheartening. Rather compare it to your own older work, and you'll see how much progress you've made, which should be more encouraging. And if you see no progress, time to sit down and practice more, instead of remaining in your comfort zone of "I've always done things this way". ^^
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Uuuu...my special name
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A really good and clear article
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