A derivative work is defined as one that is substantially derived from another underlying work. The dictionary also notes that such a work, when based on a copyrighted work is an infringement if permission is not obtained prior to execution. Understand? No. Well if you can tell where it came from, it is a derivative work.
This used to be quite common in artwork. All over the world you could find these works and art historians could trace their origins. With the establishment of copyright, and intellectual property, it is now a definite no-no.
Well, what about fair use, you ask. It truth, fair use has nothing to do with creating new works of art, which collage artists around the world repeatedly fine out. This clause in the copyright laws is actually meant for critique and publicity. Reporters and critics covering art shows and doing book reviews, etc, can show snapshots of or include excerpts from works and shows they are reviewing. It was never meant to say you could take parts of other works and incorporated them into your own work. Most shows do include a clause in their prospectus explaining that images can be used to publicize that show or gallery. This is also fair, and does not effect the actually copyright holder’s integrity.
When is reference not reference?
But I only used that photo for reference in my painting, isn’t that fair? Well is it? Why did you use that photo? Did you copy the layout of it? Mimic the colors and lighting? Use the same stances of the people? Well? Who's work is it then?
Dictionary.com defines reference, # 8 as: “use or recourse for information”. This is the meaning that our reference photos should have.
I am doing a painting with a horse, oh; I need a picture of a horse so I know how many legs a horse has. You should use those photos for information only, the actually composition of your painting must be your own if the painting is to be submitted to any show or competition.
If you copy the composition of a photo, you are copying the photographer/artists work, their artistic vision. There is a huge temptation to do this. We all have calendars, books etc, that contain photos we would love to copy. But remember, this makes it a derivative work.
Well, all I have to do is change 10% of it and it is my own. Or simply reverse it. Where this myth came from I don’t know. But it persists. Not true, people. Simply change a few things around, reversing the photo, etc. does not mean it is ok to copy. How do you know the photographer did not reverse the print before it was published? And there is no truth to the 10% rule at all. If you can recognize where it came from, it is copying. And don’t think simply doing it in another medium makes it ok. It does not.
Now there is definitely a difference between derive from and inspired from. One is totally based on the previous work, the other has it own composition, style, texture, etc.
Royalty Free photos on the web
There are tons of sites on the web to view and download photos. Read the fine print. Even on the stock photo sites, these works cannot be copied for artwork. The fine print even states that you cannot use these for derivative works. If you find a photo you like, you must get permission in writing from the photographer to use it. The site you find it on may or may not be the site of the photographer, and I would be cautious of any site that does not protect or mark the photos. Many websites unfortunately, make free with photos, drawing and paintings found on the Internet. Yes, Virginia, things on the internet are covered by copyright laws.