Yesterday, Isabel Belfort wrote, “I’m trying to make paintings that use the works of dead artists. The paintings do not look like the originals. For instance I change the position of the person and alter the dress and change the face — but I follow the same line. Would this still be considered plagiarism? I sell them inexpensively — mostly to friends. My dream is to become a well-known artist. I took some classes but have been mostly my own teacher. Can you advise me?”
Thanks Isabel. What you’re doing is called “appropriation.” It’s one of the least offensive of the copying arts. Outright plagiarism and counterfeiting can get you into the slammer — but you should be free for a while yet — providing you don’t wander into exactly copying some dude, dead or alive. Legally, your painting needs to be 10% different from that which you are imitating. That’s hard to quantify but you should keep it in mind.
You might also ask yourself why you need to lean on dead masters. With all the great reference that we can get ourselves, all the stuff yet to be made, and all the pride you can take in a personal vision — there’s plenty left to play with. Your urge to replicate may come from a natural reverence for the works of perceived “stars.” You might give some thought to being your own star.
While some might consider it an “homage,” appropriation of style or subject can have the effect of banalizing and trivializing existing work. Over-appropriation and market-glutting cycles regularly attack wildlife, native American, faux-primitive, and other art genres. The path that leads to a unique vision is uphill and rocky, but it’s the stellar route to the dream of becoming “well-known.”
There are exceptions. A few years ago I was on a jury when a piece was chosen and then a juror pointed out that it was a knockoff of a demo in American Artist magazine. After a discussion the choice was upheld — the majority of jurors agreed that “we all use each other’s stuff anyway.” The excellent copy came in for a $25,000 prize and I was disgusted. I’m not sure of the best advice I’ve ever given, but this comes close: “Do something that others will have the desire to plagiarize — but will find it difficult to do when they try.”
Esoterica: Louis Vuitton’s Murakami bag costs in the art-stratospheric range of $1500 — generating about 300 million in sales last year. The Chinese knockoffs, practically identical, cost about $35 and sell to a crowd that still needs to look good but never pays the big prices. Louis Vuitton will spend over ten million dollars this year retaining lawyers and scouts to fight “brand devaluation by overexposure.” Two questions: “Is a bag art?” and “Who’s running the better racket — Louis or the Chinese?”
Artists may want to mimic the style or subject of another artist for many reasons. For instance, a well-known artist here in the San Francisco area paints partial Rembrandts on his canvases, using it in a satirical sense. I often have dreams of the master paintings I have seen in local or European museums, yet the dreams distort the paintings in wonderful ways. I wish I could paint those dreams. I wouldn’t even consider it plagiarizing.
Resource of the Internet
by Patricia Fritz, Santa Clarita, CA, USA
I download paintings from the Internet, (mostly flower paintings) and then draw and paint them on my computer using a paintbrush program. Naturally, the picture isn’t the same as the downloaded drawing, but it does look as much as I can make it look like it, considering that I am doing it on the computer. My question is — would I be likely to run into trouble if I were to make small cards for note sending with my drawings on them and sell them for a small amount of money?
(RG note) Yep.
Hire a model
by Robb Debenport, Dallas, TX, USA
As a fine art photographer, I cannot tell you how often I receive emails either asking my permission to copy my photographs, or an email from someone who proudly announces that he has chosen to paint a copy of my work. (They, of course, never use the word “copy.”) It would seem that copying photographs is never considered plagiarism.
Whatever happened to painters working with live models? Is that too difficult? As a photographer, I’ve been working with live models my entire career. Why do painters feel that it is so overwhelming to hire a model? Or could it be that when using a photograph for “reference,” you can also use the composition, the lighting, and the pose, as well as the model? You can, in fact, make the image into a slide and project it onto the canvas. Is this what they teach in art school these days? When I have politely declined my permission to copy my photographs, I have often received angry responses from incensed students.
Now — if you shoot your own photographs and wish to copy them, or use them as legitimate reference material — more power to you. But shouldn’t real artists get past the point of copying the finished work of fine art photographers?
Horse trademarked but not Tiger Woods
by Yvonne Todd, Lexington, KY, USA
I’m an equine artist. Each year I do a print of the year’s Kentucky Derby winner for a corporation here in town. It is sent out to their customers with a short bio of the horse in lieu of Christmas cards. This year I called to set up an appointment to get some photos of the retired winner and was told I could not take them as the horse’s image and name had been trademarked. This has happened several times with horses like Cigar, Secretariat and others. (The horse’s marketing is turned over to a rep who demands money and a look at the print upfront before permission is given to go on with your endeavor) Tiger Woods sued an artist (Rick Rush) who had done a print of him winning the 100th Open but lost. The judge ruled that he could not trademark his image or his name as he was a public figure and that he could not prevent the prints being marketed and sold.
What is the best way to handle this? I certainly don’t want to get sued but it is infuriating that they think they can prevent me from making a living.
(RG note) Animals, both real and fictional, have better legal representation than people. You have to go along with the horse’s lawyers. See Mickey Mouse example below.
Mickey Mouse copyright
by Delores Hamilton, Cary, NC, USA
Plagiarism refers only to copying someone else’s writing, not their artwork. Copyright law in the U.S. is the basis for most copyright laws in the Western world, and it can be frustrating to interpret. Current law says that artists’ copyrights last from the point that they make their work tangible (a sketch on a napkin will do) until their death plus 70 years. So, copying the old masters, long dead, is most often safe, assuming that they’re not so perfect that they might be considered forgeries. Dating techniques are so sophisticated now that the originals or fakes can usually be verified quickly.
As for your 10% figure, that is a common misconception (other percentages are sometimes substituted), but US copyright law doesn’t give percentages. What it says essentially is that if even a portion of the original is identifiable in your work — something a lay person (not another artist) could easily identify — your work would be considered a copy.
When I give copyright lectures for artists, I hold up a sack I got from Disney World with Mickey Mouse on it. I ask the audience how much of Mickey Mouse’s ear can I copy with Disney’s lawyers converging on me. I start by blocking out everything but the ear. They quickly see how recognizable just the ear is. I have to cover almost all of it before they agree that even Disney’s lawyers couldn’t say I’d copied Mickey’s ear. If you think my example is nuts, I assure you that Disney’s lawyers go after any artist who tries to copy anything they have copyrighted.
There is a clause in copyright law in the derivative work section that says that if the work is clearly a spoof on or satire of the original, the artist can make a derivative work. However, I caution the artists, again, using Mattel’s lawsuits against artists who have dressed Barbie in drag and either exhibited her or tried to sell her. As far as I know, Mattel has won every case of copyright infringement, even in those obvious cases of satire!
The whole issue of designer clothing and accessories being knocked off — which is so common and has been forever — is one I still don’t understand. Why didn’t the House of Chanel and others of its ilk sue all of the manufacturers of the knock offs? I have no idea, but it still mystifies me.
If anyone wants to read the actual copyright law for the US, see the Library of Congress website.
by Lauren Cole Abrams
Is a bag art? I am hoping that it can be and have been applying all the design sense and aesthetics I have developed in my 35-year art career to just that end. I have attached photos of some prototypes I have designed and hope to market soon. I love the idea of creating bags that will be so interesting and artful that people will carry them with pride and share them as art objects… and I am not the only artist doing this. Kathleen Dustin and a number of others are mining this new art form and if you do a search online you will find some gems.
How to do it
by Lusine Sonja Karagashyan, Yerevan, Armenia
Everything should be natural, and it is good that the original is very rare event. You should draw in silence, alone, in your room, in the distance from others. You never know whether the surrounding people need you or not — they don’t cheer up you. The picture must be created without sketches, immediately. As to sizes, they can’t create any difficulty, because any big size may be turned into a small one. And as you work you can paint the big canvases in your mind. This way, everything is possible.
Appropriated for nostalgia
by Christopher Short
Your letter really hits home for me as I am interested in Medieval and Victorian images “appropriated” for my own composition. I have often wondered if this is a valid way of working. I have my reasons but am unsure if they would hold up under scrutiny. As I hope my art will have some long lasting impact I am concerned in working as honestly as possible. I appropriate imagery or stylistic methods in part to create a sense of the nostalgia in the work. And to discuss various aspects of current society, both of things lost that shouldn’t be and looking at the root of things still prevalent in our culture today that need to be lost. I find it interesting that there is a peculiar quality of images belonging to a particular time period, a quality which is not present in images seen and produced today. So does this sound like a lot of “hoo haw” to justify my working process? Or does this sound like a valid jumping off point? Please advise.
(RG note) Thoughts are not “hoo haw.” The problem is “hooscow.” From the letters here included it seems that nostalgia makes not such a hot case.
by Lori Lukasewich
I say love great and historical art all you want and do your best to make your own just as great, and if you absolutely have to appropriate someone else’s work do us the favor of being a genius and make it say something entirely new. And if you can’t do that, at the very least, give the original artist the credit in the title of your painting.
by Madeline Carol Matz, Roach, MO, USA
In an interesting twist to your story on the copied painting winning a prize, when I was sixteen, I entered a local art competition which I lost. Afterwards, a judge came up to me and asked if it was copied and I was quite surprised by the question and told him that it wasn’t. He gave me a smile and told me he didn’t think it was despite what the other two judges thought — that my pen drawing had to be copied, although they could cite no specific origin — and that was why I had not won!
Number of artists sued
by Bonnie Hamlin, Warren, MB, Canada
Locally a would-be artist copied an image from a photograph of a friend of mine without permission and made prints of it. The end result was the artist had to destroy all prints, the original painting and pay the photographer. There have been a number of court cases in the last 10 years where artists have copied and have been sued. Even though they changed most of the painting it was determined that they had not changed identifying objects. I think the 10% rule applied in the 1970s but not today. Besides, gathering your own reference materials, sketches and using your own imagination is going to help a person grow as an artist far more than stealing someone else’s work. It is also important to keep reference items on file in case you need to prove you are the original artist, even with a copyright.
Experience worth the journey
by Melinda Morrison, Denver, CO, USA
There is value in initially copying some “masters” work to understand composition and structure of a painting, however the buck stops there. Eventually, every artist has to face the dilemma of finding their own “voice” in their painting. As an artist, my whole premise is to evolve as an artist and constantly better my work. That may mean that even my style may evolve over years of painting. I can play on other’s visual approaches, but in the end, it still has to become my own painting and statement of a visual approach. There is much greater personal risk that an artist experiences when she/he is willing to evolve into their own person in their art, but the experience, even though painful at times, is worth the journey.
Stay offa my turf
by David Wayne Wilson
“To live outside the law you must be honest.” A beautiful observation by Bob Dylan, but I have to add that no mention is made here of allowing a man’s law to be your God! A lot is learned by immersing oneself in some of the greatest art that has ever been. Try copying Rubens’ Descent from the Cross.
I remain forever appalled by the tendency of the law-makers to step on my turf — said ‘turf’ being this mind and all that goes on in it. And, when my mind extends, as it is wont to do, onto a canvas, there too my turf belongs to no law-makers. Law-makers are human, as are judges, lawyers and plaintiffs.
There is no denying the wisdom of Bob’s counsel. I like it, and it makes great sense. But I have seen Rembrandt’s own face (twice) while copying one of his ‘ladies,’ and whether he thought I was being a thief, wasting my time or just wanted to say ‘Hello — I’m flattered,’ it was well worth the experience, however startling it was! If my love of painting were confined to copying Hieronymus Bosch, am I not much blessed thereby? Famous artists didn’t get that way by dodging the law! They got that way by doing what they were moved to do. And there are ‘higher’ sources, too, that I could cite whose message re-iterates that there is only one law which one ‘must’ obey, and that is the law of Love.
Copying in the galleries of Europe
by Louise Bunn
I am surprised that you neglected to mention the value of plagiarism (also known as “copying”). On my travels through Europe I often see students standing with their easels in front of some masterpiece or other, copying it as faithfully as possible. After graduating from art school myself, where it was the style to give students as little technique as possible, I too copied paintings I admired. Boy, did I learn a lot. Copying opens your eyes to new possibilities, and new techniques. I would highly recommend it as a tool for learning. Trying to fob it off as your own however, is quite another matter.
by Richard Woods
Take a look in the mirror for a cooperative portrait subject. Rembrandt (view self-portrait) painted and drew dozens of self-portraits in his career. Trying one’s own image in the working ethic of different masters can be an enlightening exercise.
Copyrights now aggressively protected
by William Westwood, Albany, NY, USA
I enjoy your letters and often find words of inspiration that I can pass on to a college class that I teach annually on Business Practices for Visual Artists. Professionally, I am a medical illustrator with over 25 years experience in the field. I lecture to fine artists, illustrators and designers frequently on copyright and business practice issues.
Regarding your response to the person who asked if they were plagiarizing by appropriating certain aspects of dead artists’ work, I feel compelled to nitpick a little at part of your comment. You stated that “Legally, your painting needs to be 10% different from that which you are imitating.” I’m unsure of where that percentage came from, and perhaps it has some legal standing regarding plagiarism or counterfeiting, but I am concerned that if some of your readers were to follow this advice and copy 90% (or even 50%) of the “wrong” artwork, they might find themselves being hauled into court on copyright infringement charges. (With penalties being up to $150,000 plus attorney’s fees for willful infringement, this is no small concern.)
Obviously, just because a painter is dead (e.g., Warhol, Rockwell) doesn’t mean that copyrights to their works aren’t still in force. Further, museums often have copyright protection over the printed materials and/or photographic images of the artwork in their collections. And most books certainly have copyright to the printed images between their covers. These are often the only access inexperienced artists have to the artwork they end up copying and it’s therefore a potential trap for the naive or inexperienced. And most importantly, 10% worth of changes to the content of a painting or drawing would most likely not be enough to skirt copyright infringement charges. The court’s test for something like this is: would a reasonable person (a lay person) viewing the copied art and the original be able to see enough similarity between the two to tell that copying occurred.
Again, I apologize for nitpicking. I don’t mean to be critical, but in today’s legal climate, copyrights are being aggressively protected and even accidental or seemingly innocent infringements can result in large penalties. I find that copyright infringement issues are often overlooked among fine artists and this sometimes results in situations like the one you faced as a show juror with the American Artist demo knockoff. That was truly distressing to read and the rest of the jury’s rationalization made it even worse.
by Mary Klotz, Woodsboro, MD, USA
I hope/expect you’ll get many objections to the 10% statement. You do not say whether this is under Canadian or international law, but I know it is not U.S. law, having done pretty extensive research a few years ago for two lengthy articles I wrote for Complex Weavers. Copies will be sent to any who ask.
If a work is recognizably similar to the original, it is infringement and would be considered plagiarism. If the copyright to the work has expired, the work comes into public domain and can be, legally, freely used. Infringement can of course still occur, morally and creatively, with whatever consequences the art world and one’s moral compass impose, but legally, there are no ramifications for any variation of hand copying, “appropriating,” “borrowing,” “referencing,” using a component, or using a work as a jumping off point (“inspired by”) in painting or drawing one’s own new piece. There can be infringement of a public domain work, by, for example, electronically copying a particular publisher’s presentation of public domain material, which may infringe on the copyright of the publisher creating the publication- that font, layout, that photograph of the original work, etc.
The law is written to clear cut cases; all the grey area is fleshed out in litigation. But the underlying intent of the law is clear: The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the copyrighted work, and to display the copyrighted work publicly. Basically, you get to control your stuff and the use of your stuff.
Here are some more thoughts to chew on: Ideas cannot be copyrighted; images can. (One cannot copyright the idea of a landscape with a lone, lighted window spilling light out into the night; one can only copyright a very precise rendition of that idea.) “Fair Use” is another aspect worth considering, especially in academic/student settings.
There are links on my website to many copyright information sites (see below).
The term of copyright now is the lifetime of the creator, plus 70 years, but there are many pieces whose term of copyright is different because the law that was in effect at the time they were created dictates the term of copyright protection. Whether the creator is now dead or alive does not change the status of the copyright. (I’ve received permission from the heirs of M. C. Escher (view the Waterfall lithograph) to use one of his images in a workshop handout.)
People have long studied and developed their skills by copying works of the “masters.” In school I had several such assignments — choose a painting and render it in greyscale using charcoal (great value study; I chose Starry Night.) These are useful exercises, but my compass says they should never be sold or exhibited outside a classroom setting. The greyscale copy is not “mine,” though I bought the raw materials, every stroke was from my hand, and the work is in public domain. Further, I do not want to be known for my derivitive works — I want my name to be attached to work that is mine, painting what I see, from my life, with my filters and foibles.
Disclaimer: I am not an attorney. An attorney should be consulted in dealing with matters of the law. What is written here is food for thought, not legal advice.
(RG note) Thanks, Mary and others for your authoritative material. The following are a few online resources sent in by Mary Klotz:
US Copyright Office: Main Website
US Copyright Office — Copyright Basics — Circular 1 — What Works Are Protected?
US Copyright Office — Digital Millennium Copyright Act Study
Volunteer Lawyers for the Arts: Pro bono legal services, education and advocacy to the New York arts community.
The University of Texas — Crash Course in Copyright — Fair Use Of Copyright Material
Electronic Frontier Foundation — Fair Use article by Negativland
Copyright Website — Fair Use Law Information by Benedict O’Mahoney
Nolo.com — Legal Encyclopedia — Trademarks & Copyrights Section
Association of Research Libraries (ARL) — Conference on Fair Use
The Geometry Center — Communicating Mathematics with Hypertext Course: Lecture on Copyright, Lecture on Public Domain vs Publicly Available
Stanford Copyright & Fair Use Center
10 Big Myths about copyright explained by Brad Templeton
The Professional Photographer’s Association of Greater Kansas City — Licensing Rights Definitions
San Francisco Chronicle — Internet swapping spreads to hobby industry by Amy Geier
You may be interested to know that artists from every state in the USA, every province in Canada, and at least 115 countries worldwide have visited these pages since January 1, 2004.
That includes Sigrid who wrote, “I enjoy Michelangelo’s take on the matter of plagiarism: ‘Only God creates. The rest of us just copy.’ ”
And also Joan Tribble who wrote, “I can’t even plagiarize my own stuff.”
And also Ed Hyatt who wrote, “To more or less ‘come clean,’ I’ve been giving attribution in the title.”
And also Marj Vetter, Three Hills, AB, Canada who wrote, “It’s theft. I can’t have Shakespeare’s plays re-published under my name, why do some painters think they can copy and sell under their names?”
And also Ben Novak who wrote, “If one has nothing to say about life or self by authentically choosing subject, composition and medium, one is no better than someone doing digital copies and selling those.”
And also Victoria Witte who wrote, “There has to be a very real creative spark coming from the individual in order to produce good art.”
And also Gail Shepley who wrote, “Who has the best racket? The lawyers.”
And also Jan Zawadzki who wrote, “$25,000 for a copy? Give me a break! This is an outrage! Boil the lot of them in oil. There’s gotta be some brewing witches out there that have the recipe.”