“It’s essential artists understand both copyrights and moral rights, even as art students.” – Kayte Lewis, Voice Lawyers
There is much confusion amongst artists around using someone else’s creative work. Artists use photos for reference and inspiration every day, so when does this become copyright infringement? The simplest approach could be just don’t copy. Create from your own reference photos, your imagination and observation. However that seems neither practical or possible, especially if I want to paint an eagle, for example, and have never seen one. Others would say there is nothing original under the sun, and all creative works build upon work that has gone before them. As artists of integrity, how do we navigate the minefield of ‘permission to use’, copyright-free, fair dealing, and works in the public domain?
“Just change it a little.”
The biggest misconception is that you only “have to change it a little bit” to make the new work original. This is not true. I have discussed this thousands of times with artists who somehow believe their opinion carries more weight than the law, and ‘not knowing’ made it okay. No, personal opinion and ignorance do not stand up in court. The other misconception is feeling anonymous on the internet and that “they will never see it”. Don’t count on it. The internet never forgets, and search engines are expanding. Aside from personal honour, how would you know if the person you’ve copied has the finances or resources to follow up on your infringement? Whether you are selling your work or only posting snaps on social media, it is important for all artists to know the Copyright and Intellectual Property laws.
Copyright is automatic
The laws differ from nation to nation. A good starting point is the industry association in your country. The National Association of Visual Arts (NAVA) leads advocacy, policy and action for the contemporary Australian arts sector, and you can access NAVA’s Code of Practice by creating a free login. Intellectual Property (IP) rights are legal tools used to protect creative and intellectual processes in artwork, design and invention. Some rights apply automatically from the time of creation, other rights and trademarks need the creator to action registration. The World Intellectual Property Organization (WIPO) provides legal framework for ethical conduct in their guide ‘The Role of Intellectual Property’.
Artists need to be respectfully aware of others’ rights and have a procedure that protects their own rights. The Arts Law Centre of Australia publish a Copyright Factsheet to help artists understand the risks of when appropriating another’s work infringes copyright or moral rights. The original creator owns the copyright and is the only person entitled to modify or adapt the work (for example, make a painting from their photograph, making a collage, adding elements to an existing work). “Artists who incorporate elements of other works must obtain permission from the owner of the ‘borrowed’ work.”  Not sure who owns the image? Reverse image searching is your friend. A reverse image search will also tell you where your own work is being ‘borrowed’.
Appropriation, Derivative art and Recontextualisation
The terms ‘appropriation art’ and ‘derivative art’ need some explanation, and I discuss this further under ‘Stuff you can Steal’. Deliberating ‘borrowing’ images to create a new work, such as Warhol’s Campbell’s Soup Can, is called recontextualization. Re means ‘again’. Recontextualization artists change the paradigm by making a comment on the original creator’s meaning. Recontextualization and Appropriation art are Post-modern movements. Generally work is appropriated without permission, however you are meant to recognise the original in the new work. Appropriation in contemporary art is controversial and can lead to expensive court cases.
Where appropriation becomes a contested area is in derivative work. A derivative work is where an artist has borrowed parts of another’s work to create a new work. Most artists using reference material would be in this category. Many artists do this thinking they are free to use any image made publicly available, but they are most likely infringing copyright. The term ‘in the public domain’ has become synonymous with ‘on the internet’, but it has a specific meaning in copyright situations. It means the work is free to use when the copyright term has expired, meaning 70 years (generally) after the end of the artist’s life. It does not mean you are free to use anything someone has posted online, or – heaven forbid – that someone would be flattered if you took it. Theft is theft, it’s not a compliment.
What about free-to-use images?
Many royalty-free sites exist online. These sites hold the license for images that they then pass on to their users without charge, but you should always check their fine print to understand what free-to-use means if you use the image publicly. Use for ‘fair dealing’  is also exempted from copyright. There are several conditions to be met for the application of fair dealing, summed up as appropriating portions of the work for commentary, critique or parody. Generally these are educational or review purposes, and not entertainment or commercial considerations, and generally it is considered as an allowable percentage of the work as a whole. This is where the myth that copying ‘10% is OK’ originated. 10% is only OK if the purpose of the work meets ‘fair dealing’ criteria.
If you have not obtained an image from the public domain, or from a royalty-free site, and you do not come under ‘fair dealing’, you can assume the image is copyrighted and by using it you have entered illegal territory. Copyright automatically applies to any work the moment it’s created, it does not need to have the © copyright notice placed on it. Copyright protection does not rely on the internationally recognised signifier of the circled C + creator’s name + year, but it is good practice to use it. You need written permission to use other people’s content whether you change it or not, whether you make money from it or not, and whether you credit them or not. You have a legal obligation to credit the original creator. Art students are encouraged to draw on influences of other artists to be inspired, however it is important to clearly show what is not your own work. If you make a similar work to, for example, Van Gogh’s ‘Starry Night’, you should write (After Van Gogh) in brackets after the title of the work. If you make a similar work to a living artist, you must obtain permission.
Using photo references
Many artisans make a painting or a sculpture based on photographic references found online. They may or may not violate the original artist’s or photographer’s copyright, depending on what has been copied in the painting. You cannot copy the actual original painting or photograph itself, but you can copy the image it depicts. This is because an idea, concept, or technique cannot be copyrighted, but only the tangible expression of an idea. What is copyrightable must show up ‘in time and space’. Infringement occurs only if there is actual copying of specific elements or the unique style of the photograph. Infringement occurs when you can recognise the original work in the newly created work.
For example, a photographer takes a picture of an eagle in flight. This may inspire other artists to do a series of photographs or make a painting of the eagle. The photographer’s original work is copyrighted, but not the eagle. The photographer cannot prevent other people from making paintings or taking similar photos, but they can prevent others from duplicating the original image. Artists cannot copy the actual image, but they may make paintings similar to the image. When it comes to using photographs as reference images, my advice is to always research a selection of images to ensure you do not infringe any photographers’ rights. If you are only using reference points, then nothing of your work should be identifiable as copied.
Knowing when you’ve violated someone’s copyrights seems to be the biggest area that needs clarification. Just how much inspiration can be drawn from other artists and especially photographic images? I’m not a lawyer and if your copyright is infringed, or you suspect you may have infringed copyright in your own work, I suggest you seek out a legal professional. To attempt to make more sense of how copyright law affects your inspirational references for your work, I asked Kayte Lewis of Voice Lawyers to answer some of the trickier questions. Voice Lawyers are brand protection and entertainment industry law specialists, and in our interview Kayte made it simple for us to understand. An artist has infringed copyright when an element in the work can be identified as coming from someone else’s work. “If it is a significant part of the original artwork, you need to get those permissions in place.” 
 World Intellectual Property Organization, Marketing Crafts and Visual Arts: The Role of Intellectual Property. A Practical Guide, ITC/WIPO, Geneva, 2003 <https://www.wipo.int/edocs/pubdocs/en/intproperty/itc_p159/wipo_pub_itc_p159.pdf>
 Note, in USA the term is ‘Fair Use’ and it has a different set of conditions than the Australian ‘Fair Dealing’.
 Lewis, K 2020, interview with Wendy Manzo, YouTube <https://youtu.be/Wbj1lKb1mj4>