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Here's a question that's come up twice from clients in the past four days: Is it O.K. to create a painting based on a photograph without the permission of the photographer?

The answer is a big fat maybe. The answer will always be no if the painting is a slavish copy of the photograph. The more the painting mimics the photograph, the more likely it will be found to be infringing the photograph. But as the painting diverges from the photograph in purpose and aesthetics, the scales tilt in favor of the painter.

The photographer holds a copyright to his photograph, and that means that the photographer owns the rights to the original and creative aspects of the photograph. The photographer certainly doesn't own rights to the subject or the subject matter of the photograph, which are neither original nor creative. But the photographer will have some rights in the composition, the lighting, the total look-and-feel of the photograph. And by virtue of owning the copyright, the photographer owns the right to make and distribute derivative works of the original photograph-new works that are based on, extensions of, or made in a different media than, the original photograph. This right to make derivative works includes, of course, the right to make a rendering of the photograph using paint.

But isn't it OK if you just change a few things around? Doesn't that make it all better?

Well, maybe, and this is where things can get a little hairy. I would love to give you a nice formula here, a percentage of things you could change and be absolutely certain that you won't be found to be infringing, but I can't. No such formula exists, despite persistent beliefs to the contrary.

One of the things involved here is what's called the "fair use doctrine" of copyright law, which allows copying of copyrighted works under some circumstances. What circumstances, you ask? Traditionally, fair use has been used to justify copying in educational, research and critical / commentary situations, but the doctrine has been getting increasingly invoked, and properly so, to protect purely creative uses of others' works. In my opinion, this expansion of the fair use doctrine is vital to the creative health of the art world, because it counteracts the increasing aggressiveness and belligerence of copyright owners, who increasingly see any use of their works as a big pay day, whether justified or not. In other words, more allowances of fair use will counteract the Big Information Grab that is slowly and steadily privatizing and monetizing our common culture.

A recent case in New York illustrates this new, much needed trend. Artist Jeff Koons created a painting that featured four pairs of womens' legs dangling over a landscape of fudge brownies, donuts and pastries. (I will leave it to the reader to determine what, if anything, Mr. Koons was trying to say here) One pair of legs was admittedly closely, although not exactly, copied from a photograph used in an Allure magazine article about metallic toenail polish.

The court, in a terrific and thoughtful decision, ruled that (1) Koon's use of the legs in his painting was transformative, in that the purpose of the use was creatively and imaginatively different than the original use. The Court observed:

The painting's use does not "supersede" or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, and new insights. Such use, whether successful or not artistically, is transformative.

In other words, whatever it was that Koons was trying to say in his painting, he sure wasn't trying to sell metallic toenail polish! A transformative use favors fair use.

The court next said that (2) the photo had been widely published and the aspects of the photo that Koons took, a pair of crossed legs (without any of the background images that framed the photograph's context) was more banal than creative, and this also favors fair use.

Finally, the court ruled that Koons' painting did not compete in the marketplace with the photograph, such that the painting did not cause the photographer any financial harm. This factor also favors fair use.

For all these reasons the court ruled that Koons' painting, which admittedly copied the focal point of the photograph, did not infringe on the photograph. And the court ruled this way even though the painting did not easily fit into any of the traditional fair use fair harbor categories of educational, research or public commentary usage. (Another interesting aspect of this case is that Koons has been found to be infringing several times in the past, under circumstances where his use of preexisting works was much less transformative)

All of this makes perfect sense, and supports the common-sense idea that paintings that draw from photographs should be given fairly wide berth. To be sure, most paintings of celebrities or other famous people are based on photographs, since most painters don't have the juice to have famous folk drop by the studio for a sitting; and no painters to my knowledge have access to the way-back machine that would be required to personally observe an historical figure.

I certainly do not mean to create a false sense of security here for the painter. Many, if not most, of the courts in this country will not have a judge as enlightened and attuned to these issues as the judge in the Koons case. Fair use is one of the most tricky and intellectually confounding doctrines that exists in modern jurisprudence, and fair use is constantly under attack by big-business "content owners" who seek to squeeze every possible cent of profit out of their "content portfolios."

Many artists I know will surround themselves with various photographs of a subject that they are painting, and consciously not draw too much from any single photograph. But often times the grand aspects of a single photograph are what the painter wishes to capture: a particular facial expression, body posture, or juxtaposition of images. And the Koons case establishes the proposition that pulling a single aspect out of a photograph and recontextualizing that aspect it into a painting is not, at least in the eyes of one earnest judge in a very influential court, an act of copyright infringement.

© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.