Fox Me a Copy

by Lyn StClair

In the Fall of 2012, I debuted this painting
titled "Grasshopper"...

A week after the Georgia show where it was first exhibited, by chance, I walked into a little art show in Nashville...and saw this:

When I spoke with the artist (who, up until then, I had considered a friend), it went something like this:

Lyn:  "There is a fox painting out front that looks extremely familiar"

(Copycat):  "Yes, I was inspired by your use of color"

Lyn: "It is exactly the same"

(Copycat):  "Oh no, the pose of the fox is COMPLETELY different"

That, and seeing copies of work by other artists hanging in his booth, was the conversation ender. I picked up his card, photographed the copy and contacted my attorney.  

As I was taking a photo of his copy (he'd even copied my framing!), a customer walked in, looked at his piece and exclaimed..."Wow!  That is what I love to see, a completely original work of art!"  When I showed her the image of my original painting on my iPad and replied "it is a copy of my painting", she shrugged and took a photo of his painting.

Originality…what is it made of?  As artists, we strive for originality in a world that makes copying "okay".  There are knock-offs of everything you can imagine being sold on street corners, online and in stores everywhere.  What has happened to us?  Where did we lose the appreciation for true originality?  Artists are admired and revered for their originality…but what about the ones who copy other artists?  Why do some people choose to copy the work of others?  Is it laziness, a lack of integrity or simple ignorance…is it possible they just don't know any better?

Throughout the history of art, artists have learned to paint by copying one another or other people's photos.  The comic books that many artists grew up with (my Dad and I included) had adverts on the back asking you to "Draw Me!", copy a drawing in the ad to send in to their "scholarship" competition.  For centuries, students of art have stood with easels and sketchbooks in front of the art of masters (old and new)…to learn by copying every brushstroke.  Heck, I started my professional career doing dog portraits from life (at age ten) after copying a lovely portrait by Betty StClair (my Mom…and she said I could).
Copying as a tool to learn is one thing…

Where does it cross the line into "theft", though?  

First, lets get the dry stuff out of the way...a little about the legalities of copyright.  According to the U.S. Copyright Office/Library of Congress:

"Copyright is a form of protection provided by U.S. law to authors of  “original works of authorship,” including “pictorial, graphic, and sculptural works.” The owner of copyright in a work has the exclusive right to make copies, prepare derivative works, sell or distribute copies, and display the work publicly. Anyone else wishing to use the work in these ways must have the permission of the author or someone who has derived rights through the author."

"A work is automatically protected by copyright when it is created, that is, “fixed” in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection."

"Before March 1, 1989, the use of a copyright notice was mandatory on all published works, and any work first published before that date should have carried a notice. For works first published on or after March 1, 1989, use of a copyright notice is optional."

As per that last paragraph:  If you see a work that does not have "copyright" on it…it does NOT mean it is free to use!!!

For visual artists…copyright of every original image belongs to the creator of that image (this includes photographs).   That means you may not copy a work of art (or photo) without express, written permission of the original creator.  To put it bluntly, if you copy a painting, sculpture or photograph created by anyone other than yourself without written permission:  it is stealing, plain and simple.  By the way, it goes for writing, as well.

What if you"change" it…where does it become "safe" or "derivative"?  Here again, words from the Library of Congress:  

"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."  

Copyright law takes a narrower view, defining “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” (17 U.S.C. § 101)

This is important because one of the rights given by law to copyright owners is “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. That means the original creator of a work has the exclusive right to produce derivative work…anyone else has to have the permission of the creator.  Even Hollywood cannot make a movie of a book without obtaining the " rights" from the author…the same goes for photographs and paintings!

As artists, we often find "inspiration" in the works of others. Where is the line drawn between "inspired by" and "stealing from"?  "Fair Use" is a defense available to someone who uses the work of someone else—without permission—in the creation of (his or her) own.  "Fair Use" does not mean "okay to copy"!  This is what the U.S. Copyright office says about Fair Use:

"The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.  Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair."

Fair use is a slippery slope, though… the court's interpretation of  those four factors is subjective and can bring  unpredictable results.  You may think your use is fair, the original creator and the court may well think otherwise.   Essentially, if someone recognizes any similarity between your work and the original: you're in trouble. 

A few simple rules to remember:

If you didn't create it yourself, someone else did…and it belongs to THEM!

It does not matter if you are selling it or just using it for your own purposes…copying without permission is stealing.

Just because it is on the internet…it is NOT free to use.

Just because millions of other people are doing it…NO!  Hello?  Heard of lemmings?

Now to the "art" of the matter…and the original point:  What true artist would WANT to copy the work of another artist?  

Having stared at my easel for seemingly endless hours over the years as I work to draw something original from my mind/heart/soul…I can tell you it is not always easy (understatement!).  THAT, my friends is why they call it "art"….if it were easy, it wouldn't be special.

People who hear of a copyright infringement often say to the original artist: "what a compliment".  The artist who copied my fox, when confronted, said "I was inspired by your use of color".  While I can appreciate the intended compliment, what that artist did with his inspiration was WRONG.  To look at someone's work and be moved, to be inspired to reach for something greater in yourself, to push your work a little closer to the edge…THAT is a compliment to the original artist.  To copy what they did and sign your name to it…that is just stealing.  By the way, another thing people tend to say when they look at the samples of "stolen" paintings such as above:  "well, it's a BAD copy".  It does not make a difference if the copy is bad or better than the original…it is theft.

As artists, it is impossible not to be inspired by artists and work that moves us.  What one does with that inspiration is what separates the chaff, though.  Oleg Stavrowsky wrote a fabulous article for Southwest Art (Dec. 1996) called "Ten Artists I Steal From".  Stavrowsky strikes at the soul of what it is to be "inspired" by another artist.  I encourage every artist to read it if you can find a copy…if not, come to my house and you can read mine.  

By the way, if you don't know it already, photography falls under the copyright law.  If you copy someone's photo without permission…it is theft.  It amazes me how many artists hang work at shows that was copied from magazine images…seriously, do they think they're the only one who saw that photo?  This applies to images  online, as well (including FaceBook).

Something to consider if you buy photos for reference…there is not a serious photographer anywhere who does not let the motor drive run when something cool is in front of his/her lens.  Just because you buy the rights to image #27…does not mean the photographer will not sell image #25, 26 and 28, 29 to someone else…all of which could look exactly like the image you purchased.  Legally "owning" an image does not mean it is a good idea to copy it exactly.  The composition of a photo is the artistic creation of the photographer.  Faithfully copying someone else's image and/or composition, whether you "own" it or not, is not original art.  

Creative people are quick to whip out their "artistic license"…perhaps more artists should also embrace their "artistic integrity".   Artistic integrity does not mean you starve rather than "sell out"…it means you approach your work with honesty and ethics.  It means you go the extra mile to create works that vibrate with your OWN voice rather than echo others..  We should always strive to create art that draws from the unique originality that lies within each of us…it might be harder to find, but it is well worth the effort.  Remember, your art will live long after you are gone…be true and be ORIGINAL.

Post script:  As I was working on this article, I came across the prospectus for Southwest Art's "Artistic Excellence" Competition.  The paragraph on "eligibility" included this:  "Compositions based on published material or other artists’ work are NOT considered original and are not eligible. Paintings based on another person’s photograph (even if it’s copyright-free) are NOT eligible."  THANK YOU Southwest Art!  If  only that standard could become de rigueur for all exhibitions, museums, galleries, shows and competitions.   

Here are a few links to more information:

"10 Big Myths of Copyright Explained" by Brad Templeton http://www.templetons.com/brad/copymyths.html

Library of Congress  http://www.copyright.gov/help/faq/