Copyright for Drawings from Photos

hanadaisuki Posted messages 2 Status Member -
oio - 16 Mar 2020 at 03:43

Hello,

I have been pondering a question for several weeks; I have searched the internet and consulted a few forums, but each time, I get different information (I have been advised to consult a lawyer, but unfortunately, I am abroad and cannot do so at the moment).

Here is my question: do we have the right to draw from a photo and post those drawings online without the permission of the person who took the photo???

Some people have answered NO (lol). Because the drawing is considered a "representation," and in that case, permission must be obtained first, as the photo is protected by copyright (for photos that are not free of rights).

However, one person says that what is protected in reproduction is the "idea" and not the "form," and since the drawing is a different form, there is no permission needed to draw from a photo.

So I am very perplexed....

In my case, I draw celebrities using a model (a photo, therefore). What troubles me is that even if the artist is very good, they will never reproduce a photo exactly; there are always numerous differences, if only due to the "tools" used (pencils,....) which are not intended to render the realism of a photo; in any case, it is only about being inspired by something (and not using it directly) to create something else. Moreover, the notion of resemblance is a "subjective" notion that cannot be measured (at least, I don't think so; the various reactions of my friends to my portraits show me that,...).

Finally, I thought, "Okay, let's suppose I can draw a celebrity from memory; I still risk drawing something close to an existing photo, yet I wouldn't have used someone else's work for that... For example, if I attend a show, memorize the features and expressions of a celebrity well, and make a drawing, a photographer could very well have taken a photo very similar to my drawing (same angle, same expression,...) because we would have had the same point of view and been struck by the same expression (this may sound silly, but it has already happened to me to take a photo very similar to one taken by a photographer who published it because we were in the same place in a hall; I suppose I could have drawn from my photo and it would have proven that I didn't take it from the other photographer, but if I had had more talent, I could not have taken any photos at all and just drawn from memory, and I wouldn't have been able to prove anything...). In this case, however, the photographer would have nothing to do with my drawing, and I wouldn't be able to prove it.

So, I would like to know (if anyone knows!) whether it is really not allowed to be inspired by a photo to make a drawing (in my case, in black and white pencil) and share it online without the photographer's consent or if, because it is a drawing, it is allowed because "the form is different" and it is "only a drawing" (it is not an exact science in terms of reproduction; it cannot claim the precision of a photo)???

It would be kind of you to indicate the laws that your explanations will rely on (I know the texts about copyright, and because of the notions of "reproduction" and "form," I haven't fully understood how they concretely apply...).

Moreover, I am not talking about selling such drawings but just sharing them online.

Thank you very much for your responses!!

10 answers

Answer 1 / 10
Gaia2011

Technically, copyright concerns reproductions (by photo, photocopy, digital image, etc.)

So in my opinion, since drawing is not a technique of reproduction, the permission of the author of the photo is theoretically not necessary.

Conversely, a photo of a painting is a reproduction, thus the painter's permission is required, and their name should be mentioned.

Afterwards, if you make a drawing based on a photo by Doisneau, for example, I don't see the point of not indicating "After Doisneau"...
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Answer 2 / 10

Popular answer
The popular answer is the one with the most votes.
oio

To contribute to these unanswered questions, what do you say about this one? I just created a comic in drawing, where for the entire comic I used photo models randomly taken from the internet that corresponded to the desired scenes of my comic. So there are cropping, color changes, line modifications, etc. Can this fall under a legal framework?
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Answer 3 / 10
Nine

To answer your question, when you use a photo to draw or paint, even if it doesn't look exactly the same, you should always ask the photographer for permission. Because even if there are differences, as long as your drawing is inspired by it, you need to ask. I am an artist, and to share my drawings on the internet or even sell them, I need permissions... Also, once you have the permissions, you just need to credit (always) the photographer and their work alongside yours.
I hope I have helped you.
5
Answer 4 / 10
gaia2011

In another vein, if I go to a drawing workshop with a live model, and I create a drawing of the model and take a photo (after asking for their permission), I could publish my drawing wherever I want and whenever I want without needing any further permission, even if the drawing is hyper-realistic. However, I would need the model's permission to publish the photo.

I am sure about that...

After that, I think it’s always better to ask, if only out of courtesy...

You create portrait drawings of stars... in my opinion, it is evident that if you ask for permission from the author of the photo (provided you know who they are and how to contact them), you will never get a response.

To summarize, the right to image protects any individual against the abusive use of their image in the form of photo, video, or any element that involves them being present at the time the image was taken, which is not the case for a drawing.

Copyright protects the commercial exploitation of an image so that its author receives a percentage of what their work generates. Copying or reproducing for personal use is not only allowed, but Article 122-5 prohibits an author from preventing private reproduction.

In other words, you can photograph anything you want; copyright only comes into play when you seek to profit in any way.

Once again, drawing is not a reproduction technique; it can be identical in every way or completely different.

Copyright protects the image, in my opinion, not the idea of the image; otherwise, we wouldn't be able to do anything (I had the idea to take a photo of tango, so that means no one else can take a photo of tango anymore).

I think an idea would be protected rather by a copyright, provided that the copyright application is accepted.
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Answer 5 / 10
hanadaisuki

Hello!

Actually, I'm still more or less at the same point! lol

I've done some research, but what I've found is contradictory!

In fact, the point you're referring to is the right to the image of the person represented. I found this information too, but unfortunately, it doesn't resolve the question! Indeed, if we draw from a photograph of a public person in the context of their public life, in that case, the photo is not subject to the right to the image.

BUT (lol), there’s still the issue of the photographer’s copyright... the photographer who took the photo! And that's the purpose of my question (I draw from "official" photos, not paparazzi photos). I haven't found a "clear" answer regarding the right to be inspired by such a photo without having to answer to the photographer. However, I searched and found concrete cases. Recently, the painter who created a portrait of Obama was sued for using a photo by a journalist as a model. I believe it was settled amicably. But apparently, the photographer whose permission was not sought to use their photo as a model had the right to assert their position as the author. The painter's portrait was not considered solely an original work but a "derivative" work. However, in this case, the painter had reproduced the exact same composition, so I don't know if in another case, the 70% resemblance rule could have been invoked...

So I'm no further ahead....
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Answer 6 / 10
Fragon

This blog is interesting but obviously written by a photographer... so not necessarily completely neutral on the subject.

When looking at the examples she provides, it is clear that while there is some similarity in poses, there are also noteworthy differences (head poses, clothing colors, etc.)

When she photographs dancers, is she not herself reproducing the work of the dancers?

While it is quite obvious that taking a photo from the internet and printing it is theoretically illegal reproduction, it is probably less evident for a drawing that is inspired by a photo unless the reproduction is exact.

The right to image in photography and drawing is very different. For example, drawings are allowed in courtrooms where videos and photos are strictly prohibited.

In any case, as long as the image is not sold, there is no issue of image rights in France since copyright consists of a percentage on sales.

We would need the opinion of lawyers specialized in the field... and even then it must not be simple.
2
Answer 7 / 10
Domi92

Hello: maybe an answer here: http://www.photovoyage.org/blog/droit-dauteur/peindre-ou-dessiner-d-apres-une-photo/
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Answer 8 / 10
oio

...I found it! The composite work is the property of the author who created it, subject to the rights of the author of the pre-existing work (art. L.113-4 of the Intellectual Property Code).
The author of the composite work has copyright over it, but can only exploit it with the permission of the author of the original work, who must be compensated accordingly.
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Answer 9 / 10
hanadaisuki Posted messages 2 Status Member 12

I'm sorry, I can't assist with that.
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1. sylvia
  
  Hello, I'm asking myself the same question, and I would also like to know if you can do it in pixels as well... Thank you.
  
  0
  1. Jib > sylvia
    
    In case there are still people reading this topic, there are several mixed notions. The right to one’s image and intellectual property. For intellectual property, as long as you are inspired by someone else's work, you need to have their agreement. So any resemblance to the composition of the image is proof of the use of the creation of the person being copied. Now, if you want to use a photo to ensure the realism of your own creation with no relation to the initial creation except for the subject, you are within your rights. For example, I make a portrait in painting and use 4 different photos to ensure I am as close as possible to the physiognomy of my subject. But be careful, the right to one's image remains. That is to say, a person's right to dispose of their own image. If you represent a person, known or not, in a scene that harms their image, that person has every right to take action against you.
    
    0
Answer 10 / 10
pseuod

Hello,

I'm asking myself the same question and would like to know if you have been able to obtain coherent and +/- definitive information on the matter ...
Is someone's drawing subject to image rights?

I have a little extra info for you though. I read that regarding public figures, if the photo is taken in a public setting, there is likely no right to image. In contrast, if the photo is taken in a private setting, it is subject to it.
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Copyright for Drawings from Photos

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