To Copy Legally or Illegally
by Robert Vavra
My images have been illegally used on wine bottles, book covers, T-shirts, greeting cards, in magazine advertisements, posters, and so on. It must be an unpleasant moment when my lawyer or agent tells the illegal user of my images that my last four photographs sold for $80,000 or that my working fee is $20,000 per day and that the infringer is going to have to compensate us for having stolen my copyrighted material.
However, most photographers, like myself, do sell the rights to use their work for reference to artists – and for very small fee. Recently a friend saw a display of paintings at a horse show in which the images were copies of my photographs. For relatively little money, $300 for a single image, or $500 for two, the artist could have legally acquired permission to have done those paintings and tranquilly sold them. The one restriction on this agreement is that the artist can only do a single painting from each photograph. Fees for usage increase if multiple prints are done from a single image.
Now, what does the law say? First, the equine artist should know that copyright is basically the legal, exclusive right of the creator of a work, in my case a photograph, to control the copying of that work. The copyright of a photograph is infringed by an artist if without the photographer’s knowledge the artist reproduces the photograph as a painting or drawing. The copyright law is clear in that the making of what is called “derivative works” – works based on or derived from another copyrighted work – is the exclusive province of the owner of the original work. The copyright owner of the work does not necessarily have to be the author of the work. If the photograph were made for hire, the employer or other person for whom the work was prepared may be the owner of the copyright.
The copyright for a photograph lasts for the life of the artist plus 50 years. If the photo was “work for hire — meaning the photographer created the work within the scope of employment — the studio’s copyright would last for 75 years.
If an artist copies a copyrighted photograph, the artist may try and get off the hook by thinking, “Well, my painting or drawing doesn’t look enough like the photo — what difference does it make?” The answer to that very important question: If the artist copied a photograph (or even another painting or drawing) in making his or her illustration, then the copyright holder of the copied work may sue for copyright infringement. The copyright holder would either be the photographer or the publisher of the photograph.
The test of an infringement is whether the average person would recognize one work as having been copied from the other: The copying need not be exact.
The example illustrations used with this story demonstrate copyright infringement of my work in which there is no question that the derivative work was taken from one of my copyrighted images.
Since the invention of photography, great artists have used photographs as reference for their paintings and drawings. This is completely legitimate whether the painter has taken the photograph himself or legally obtained the right to use a photograph from the person who owns the photograph’s copyright. Many artists can’t go to Africa to paint lions or to Spain to paint Andalusian horses, so they must rely on photographs for source material. When an artist such as Kim McElroy asks for permission to use one of my photographs and pays the slight fee for usage of that image, I am always flattered.
If readers of this article have equine artist friends who don’t receive this magazine, please share this information with them so that if they do innocently but illegally use a copyrighted photograph as reference for a painting or drawing, they aren’t surprised by a call from a photographer’s agent or lawyer asking for ten times what a usage fee would have been had it been paid for previously and legally.