The idea behind a piece of artwork is not protected by copyright. However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work. What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit. For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation. However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph. Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.
Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:
- Photographing a sculpture… for use on a postage stamp
- Making a painting of another artist’s photograph… to display in a gallery show
- Making a campaign poster out of another artist’s photograph… to sell and raise money
- Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
- Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J rendition… to display and sell
Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling. However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.
The solution is to get a license from the original artist to make a derivative work. (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)
BY: Vanessa Kaster, Esq., LL.M.
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian; @iplegalfreebies and www.kasterlegal.com.