A picture could be inspired by photographic works. However, is using another person’s existing photography work as a model for a painting considered a violation of copyright? We would like to explain this issue below.
1. The nature of drawing or recreating paintings from photographic works
In this day and age, taking photos is no longer difficult because almost everyone owns a smartphone that can take photos and easily upload them online. For artists and painters, photos are a very rich, useful, and valuable source of information, because photos can record samples quickly, conveniently, meticulously, and accurately to every detail, especially fast-moving objects such as animals, vehicles, or objects that change over time, and the ability to depict light as close to reality as possible. Therefore, it is not difficult to see artists using photos as documents or models to copy into paintings today.
However, before copying sample photos into paintings, artists need to pay attention to some provisions of intellectual property law related to photographic works. Because, from the perspective of intellectual property, copying a photographic work into a painting is considered a derivative work and this work must be approved by the author of the photographic work. This is explained as follows:
- According to the provisions of Article 14 (1) (h) of the Intellectual Property Law, photographic works are a type of work protected by copyright. To better explain photographic works, Decree 22/2018/ND-CP stipulates in Article 14 as follows: “Photographic works specified in Article 14 (1) (h) of the Intellectual Property Law are a work that represents an objective image of the world on a light-emitting material or on the medium on which the image is created, or can be created by chemical, electronic or other technical methods. Photographic works may or may not be captioned.”
- A derivative work is a work created based on one or more existing works through translation from one language to another, adaptation, compilation, annotation, selection, adaptation, adaptation of music, and other adaptations (Article 4, Clause 8 of the Intellectual Property Law). Therefore, the adaptation of an image from a work of photography into a work of fine art of painting or graphic art is the performance of a derivative work.
- The right to create derivative works is one of the property rights of the author and copyright owner as stipulated in Article 20 of the Intellectual Property Law. Authors and copyright owners have the exclusive right to exercise or allow other organizations and individuals to exercise this right. Accordingly, organizations and individuals who want to make derivative works must obtain permission from the copyright owner and pay royalties and other material benefits (if any) to the copyright owner. author.
2. Is drawing or re-graphing pictures from someone else’s photography work considered a violation of copyright?
It can be seen that drawing or re-graphing pictures from another person’s photography work is considered copyright infringement if the person doing it does not ask permission from the author of the photography work or does not pay copyright to the author. author, copyright owner.
Specifically, according to Article 28, Clause 2 of the Intellectual Property Law, an action is considered to infringe copyright if it infringes on property rights belonging to the copyright, including the right to make derivative works.
According to Article 12 of Decree 131/2013/ND-CP stipulating penalties for administrative violations of copyright and related rights, people who commit acts of infringing the right to make derivative works will be handled as follows:
“1. Fine from 5,000,000 VND to 10,000,000 VND for acts of creating derivative works without the permission of the copyright owner.
2. Remedial measures: Forced removal of copies of infringing works in electronic form, on the network and digital environment for the acts specified in Clause 1 of this Article.”
For the above reasons, artists and illustrators should note that if they want to use photos as models to copy, draw, or draw graphics into paintings, they must ask permission and pay copyright penalties to the author and owner copyright of that photo.
Above is the article “Is making a painting or an illustration from photographic work considered copyright infringement?“. We hope this article is useful to you.
