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Avoid Copyright Infringement – 4 Best Artist Practices

hand with brush painting art

As an artist, sometimes I’m bursting with creativity. However, when inspiration runs dry, finding a subject that I’m truly excited about is difficult. Looking at the work of other artists, I sometimes find a particular piece that really excites me. Then I start thinking, ‘Hey, why not draw that?’ After all, I hear some artists say that their latest creation was inspired by a photo on the internet. But if my artwork is created using someone else’s photo, is there a problem of copyright infringement?

Yes, there may very well be a problem. The problem is called creating a derivative work, which may or may not be a violation of another artist’s copyright. As an artist, how can I avoid copyright infringement of someone else’s artwork? First, let’s define what we mean by ‘copyright’ and ‘derivative work’, and then look at some practices to ensure I’m not infringing on another artist’s creativity.

Copyright and Derivative Work Defined

What is Copyright in Art?

The US Copyright Office defines copyright as:

‘…a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression…including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more!’ 

A copyrighted work in art is artwork that is original, shows creativity, and is in some physical form including digital media.

What is a Derivative Work in Art?

example of a derivative artwork
Famous example of a derivative work: Marcel Duchamp’s 1919 piece L.H.O.O.Q. based on the Mona Lisa. (source Wikipedia)

A derivative work in art is artwork based on an already existing piece of art. This includes, but is not limited to, copying the subject, color, composition, style, or technique. In particular, artwork based on a photograph is a derivative work. 

Is Derivative Art Copyright Infringement?

Copying another artist’s work for practice, or to hang in my living room, is not a problem. No one sees it but me. However, once I make my derivative work public, like showing it online or at art fairs, then it matters. 

Again, from the US Copyright Office:

‘Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work…The unauthorized adaptation of a work may constitute copyright infringement.’

In other words, I need the original artist’s permission when creating a derivative work of art. An exception to this might be, and I emphasize the word might, if my derivative work contains so many original elements that makes it transformative. Transformative means that the derivative artwork totally changes the original piece in appearance and/or concept. 

Avoid Infringing on Another Artist’s Copyright with These 4 Best Practices

public domain and copyright symbol on device screen
Image by Gerd Altmann from Pixabay
  1. Don’t copy from someone else! Get the creative juices flowing. Take a class in stimulating creativity, get out from the usual surroundings, try new things including a different artistic medium. This is the best way to improve and grow as an artist.
  2. Look for public domain images. Most free photography sites allow free use of the content without author attribution, and also allow content modification. Nonetheless, read the licensing information carefully. 
  3. Take your own photographs and work from them.
  4. Get permission from the original artist on any artwork that is not in the public domain.

The takeaway is that your artwork should be unique enough that the viewer won’t be confused as to who the actual artist is. 

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