Fair Use of Photographs to Make Paintings

The term "fair use" originates in copyright law in the United States. Other countries have adopted the phrase and adapted the laws to their own copyright legislation. General copyright law in the U.S. mandates that the creator of a work get the rights and permission to use the work of another creator.

Fair use was created largely for an author to use existing, published copyrighted material in specific instances. Using the copyrighted work of another is considered fair if it is used in commentary, news reporting, teaching, research, scholarly writing and publishing. Fair use was constructed primarily for the written word and does not always translate to the world of the visual arts.

Copyright laws guarantee that the creator of any work receive any and all profit generated from the work. Reproduction of a work without the creator's permission is against the law. The laws were made to prevent someone from getting a copy of a literary work, making copies of it and selling it. Making photocopies for use in a classroom falls under fair use because the reproduction is for scholarly use, not profit. Using a copyrighted image from a photograph in a new painting is technically reproducing it and could lead to copyright issues unless the new image is being created for an academic venture.

Many professionals regularly use paintings, photographs, sculptures, crafts, architecture, jewelry or fashion in their creative works. Generally the creator of the new work will get permission to include the copyrighted material in their new work. If a new photograph includes a copyrighted photograph in the background of the new framing, the creator of the new picture needs to get permission to use the copyrighted photo in the new frame. Fair use excludes reproduction. Photographing a copyrighted work is reproducing it. Painting a photograph is also reproducing it. Using a photograph as a subject for students to paint in class is fair use. Making a painting of a famous photographic image to sell it is not fair use.

Two examples where using a photograph in a painting can be considered fair use are derivative art and collage. Derivative art is art based on the work of another school of painting or the particular style of another artist. If you are painting a photograph as an editorial revision, an annotation, elaboration or other modification that makes the new work completely original, your work is considered derivative. Another art form, collage, which includes different images from various media in a new one work of art work, also allows some wiggle room for painters. Nonetheless, if doing this for a commercial purpose, it is best to check the copyright of the original image.

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