About art and its muse: better safe than sorry

08 February 2021 | Copyrights, Intellectual property

Suppose you are an artist. After some googling, you find a beautifully staged original photo of an extremely distinctive plant. You decide to base your new painting on it, and display it at an exhibition. At first glance, you might think there is no problem. However, nothing could be further from the truth. There is a major legal pitfall hidden in this situation. Artists are well advised to be aware of this pitfall and to approach it with the necessary care and respect. Let us explain.

Copyright

Photographs may be protected by copyright, at least if they have an “original form”. Contrary to what these words suggest, this does not mean that the photo must be “new and unique”. Nor does it have to do with the artistic or aesthetic value of the photograph, and even less with its quality. What it does mean is that the photographer has made free creative choices, so that the result bears a personal stamp. Very subjective, in other words.

A concrete example: the Court of Justice has already ruled on this with regard to portrait photos: for these, originality can lie in the staging, lighting, pose of the person portrayed, viewing angle, camera setting, created atmosphere, photo development technique, and software chosen by the photographer.

Moreover, in this case the copyright arises automatically from the moment of creation, and continues to exist until 70 years after the death of the photographer!

Relevance? It’s all about the permission!

So where does the relevance lie? Well, copyright gives the photographer, among other things, the exclusive right to edit, copy and publish the photo. Without the photographer’s permission, others are not allowed to do these things. This also goes for artists.

You can sense that this hassle around permission can become cumbersome. However, a Creative Commons licence can be attached to the photo. In this, the photographer regulates what may happen to the photo without having to ask the photographer’s permission.

There is also a whole series of exceptions to the obligation to ask permission. For example, there is the exception of the private copy: it is permitted to reproduce within the family circle without permission, at least if the reproduction is intended for the family circle. So not for an exhibition.

Another exception is the parody exception. It is very logical that for parodying, permission does not have to be asked. But what is a parody? According to the European Court of Justice, a parody is the imitation of an existing work, with a humorous or mocking angle. And let the latter be subjective…

Luc Tuymans, for example, invoked this parody exception in 2015 in the case about the photograph of Belgian politician Jean-Marie Dedecker (taken by photographer Katrijn Van Giel), albeit unsuccessfully.

A photograph as muse?

Alright. Enough theory. What does this actually mean in practice? It means that when you use someone else’s copyrighted photo for your own work, you have to make sure that this does not result in an adaptation or copy for which permission has to be obtained, and you do not do the latter.

I hear you thinking. That’s easy to say, but when does my painting result in such an adaptation or copy? That is first and foremost for you to judge. But that opinion is not sanctifying: if it evolves to a conflict with the photographer, and the case goes to court, then it will be the judge who decides.

As for the rule about copies, the artworld often makes the comment that paint is a different medium than photography. This in itself would ensure that a painting can never be a copy of a photograph. From an artistic point of view, this is not an illogical reasoning. Legally, however, this reasoning does not hold up. The method of reproduction is irrelevant. The painting also does not have to be one hundred percent identical to the photograph in order to be a copy. And whether it is copied completely or only partially is also of no importance.

It is clear that legally the difficult and delicate balancing act has been made to protect original creations, and that as a result protecting the freedom to create has been somewhat relegated to the background.

Conclusion

There is no magic formula for determining when a painting, based on a photograph, results in an adaptation or copy requiring consent. That makes it difficult to predict what a court would rule if it came to that.

So when in doubt: better safe than sorry. Make sure you have the required permission beforehand. Moreover, it goes without saying that this shows appreciation for the person whose work you will be basing yours on. If the roles would be reversed, you would probably appreciate this too.

Do you still have questions about your artistic creativity? Contact us at hallo@dejuristen.be.

Written by Sofie Moore, Legal Adviser theJurists, and Kris Seyen, Partner theJurists

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