Hey, that’s my picture in your painting! (Derivative Use)

Picture: Side by side comparison of my “Native Spirit; Bird flying past El Capitan in Yosemite Valley” photo and a screen capture of a derivative use painting.

On top of all the other stuff that’s been keeping me busy lately, guess what I found? While re-writing a section of my current book project, I wanted to make reference to artists like Albert Bierstadt who were known for their paintings of Yosemite Valley. In particular, I was looking for something related to El Capitan. I went to Google Images and searched for “El Capitan Artwork.” A little ways down the page, an image suddenly caught my eye in a very familiar fashion. It was a painting of a bird flying past El Capitan. My immediate thought was, “Hey, that’s my photo in your painting!” Clicking on the image took me to a page on the Fine Art America web site where the artist was apparently selling copies of ‘his’ painting. But the problem is, it isn’t just his painting he’s selling. He’s selling a work which was created directly from my photo. In the copyright and Intellectual Property circles, that’s known as a Derivative Use. Technically, that means he needs my permission if he wants to sell the original or copies of the original. That permission is granted through a Derivative Use License, which like any other license, provides an allowance to use an image in a certain manner, in exchange for a fee or some other form of compensation.

I wasn’t in a great mood when I found this; lots of other stuff was going on at the moment, and this was something I really didn’t have time to deal with this. Yet it needed to be dealt with. Thus began the time investment needed to rectify the situation; who was this person, how can I contact them, are they selling this anywhere else? These kind of things happen often, and my goal is to resolve the problem quickly and easily.

I posted a copy of the above comparison image on Facebook and G+, where I received many supportive comments, along with a few which revealed some common misperceptions about copyright and derivative uses. The most pervasive of these is the idea that if it’s not an *exact* copy, if someone changed or added something, by perhaps as little as some arbitrary amount (10%) that they’re in the clear. They think the ‘copy’ now becomes their own, and they can do what they want with it. This simply isn’t true. This idea of changing something to make it your own touches base on the concept of creating something new based on something that already exists. According to the American Society of Media Photographers (ASMP) web site:

In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.

Another considerations where permission is needed include the nature of the new work, the amount of the original work copied, and if it’s being used or sold commercially. There are also Fair Use factors which don’t require an original creator’s permission before using an image. These include whether an image is of notable newsworthiness, being used for commentary or criticism, parody, or research or educational uses. But even all of these are still considered somewhat gray areas, as each is judged on a case by case basis.

In this case, I emailed the artist at every possible contact point I could find, and asked him to immediately stop selling copies of his painting since it constituted an unauthorized derivative use. I’ve licensed images for derivative uses before, and generally it can be done as a one time fee, or like poster and book sales, it can be done as a royalty based on sales arrangement, often with the original artist getting an advance on royalties. Typical royalty rates can be anywhere between 5 and 25%.

Within the week after making contact attempts, I was prepared to issue a DMCA notice. Fortunately, I heard back from the artist, who had over 1,500 pieces of art for sale on the web site, wrote back with an apology. It turns out he admitted copying the image from when it appeared in the Smithsonian Magazine. In fact, I had offered him the chance to purchase a retroactive license for a very reasonable fee if he wanted to keep selling it, which he apparently declined. He removed all the sales info, left the image in place with a credit / description which read:

Gary Crabbe’s photo was featured in the July 2008 Smithsonian.
As a beginning artist this watercolor is a loose representation.
Painting is for demonstration purposes only and is not for sale.
See Gary Crabbe’s beautiful photography at Enlightphoto:
https://enlightphoto.com

I’m good with that. It’s nice to know that people like your work. It’s often said that “Imitation is the best form of flattery.” That may be true, but if you want to sell work that’s based on someone else’s art, I’ve revised that statement to read, “”Imitation accompanied by money is the best form of flattery.”

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