I was reading a question about Copyright today on the Everyday Matters group on Yahoo, that asked if using photographs to create artwork from the Internet was allowed under the US "Fair Use Law" with respect to Copyright.
Someone replied to the question by saying yes, it is OK to use photographs from the Internet because if falls under "Fair Use". This is FALSE.
Let me start off by saying that I am not a Lawyer, and anything that I say should not be considered Legal Advice. If you require Legal Advice, you should contact a competent Lawyer.
Also this post is not intended to be a comprehensive tutorial on Copyright Law, but a useful guide for you the artist to educate yourself to the pitfalls of copyright law, and to give you some resources to read that will ensure that you have at least a minimum amount of information.
In 2008, a Canadian artist won the gold award from the American Watercolor Society for her ultra realistic watercolor. She used two photos from Shutterstock to produce the watercolor. The two photographers found out about this and screamed copyright infringement, and there was a comprehensive discussion about this that ensued on the Internet about the issue.
Subsequently she was stripped of her award by AWS, and asked to return her prize money to AWS, and the work was removed from the competition, and the traveling show of the winning works. AWS disqualified the work because it was derived from photographs that were copyrighted (against the AWS rules for entering the competition) on Shutterstock. The artist purchased the photographs royalty free, but this purchase does not include the copyright.
A comprehensive post on this issue can be read on the Making A Mark Blog.
So what is Fair Use anyway? (US Copyright Law Definitions)
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
As you can see, the term "Fair Use" is quite restrictive, and as an artist you must be very careful in relying on this as a defense for using a copyrighted photograph to create a derivative work.
Other than using your own photographs which is the best option, there are resources for using photographs under the Creative Commons License (CC) on the Internet. In many cases in these resources you may be allowed to use the photograph to create a derivative work if you reference the name of the photographer in your name for your derivative work. An example would be "Eye Of The Totem, after a photograph by Time Ennis". Usually you are requested to provide a link to the original photograph as well.
In general in the US and Canada, an artist's work is considered in the Public Domain 50 years after his or her death, and the work may be freely used. However be careful, the estate of the artist might still retain the copyright.
It is also very important to remember that copyright laws may be different from country to country. What may be acceptable in the US or Canada, may not be acceptable in the UK and other parts of the world. (Thanks to Katherine for reminding me about that in the comments below)
Here are some resources on Copyright and Creative Commons Images.
Wet Canvas Reference Image Library (Membership required Free)
I sincerely hope that you find this information useful, it is not comprehensive, but everything you need to know about Copyright in your country and the world can be found by a simple search on the Internet.
All comments are welcomed.