By definition, creating a 2D or 3D work of representational art involves some degree of copying. If you are painting a scenic view from a public place, you can hardly be infringing anyone else’s intellectual property rights (IPR), or any other rights for that matter.
But things get much more complicated when an artist paints from another person’s photograph, as Belgian artist Luc Tuymans has discovered.
The story is long and inevitably more complex than the headlines. The gist of it is that Tuymans is known for creating works which use other people’s images for certain ‘artistic effects’: as Wikipedia puts it “His signature figurative paintings transform mediated film, television, and print sources into examinations of history and memory.” (Link here.) In 2011 he completed a painting of a politician which was made from a photo taken the previous year by someone else. Although the painting is not a precise copy of the photo, there is no dispute that it was based on the photo, and is visibly recognisable as such.
The photographer took Tuymans to court in Antwerp, and Tuymans was found to have plagiarised the photo, and fined heavily.
Three important parts of the story are relevant to my argument here:
- the photographer saw Tuymans’ painting and tried to contact him for over a year to discuss his use of her photo, but Tuymans ignored her letters;
- Tuymans is a professional artist who sold the painting in question to a US collector;
- Tuymans’ painting contained little else other than what he had derived from the photo (and his changes to its appearance).
Aside from the legal arguments, which centred over a ‘fair use’ claim of ‘parody’, many have raised moral, ethical, and artistic objections to, or support for, the court’s finding. I am surprised by this, as I never had any doubt that creating a painting largely from someone else’s photo (or painting) has always seemed to me to be ethically if not legally wrong, unless the photographer has agreed for you to do so.
The freedom to express yourself artistically is not an absolute freedom to trample over any laws, or the rights of others, in that process. Indeed, artistic creation should pay greatest respect to the intellectual property rights of others. I am sure that Tuymans would be incensed to find websites, books, or other artists infringing his IPR in the way that the court judged that he had infringed the rights of the photographer in this case.
‘Found images’ and the like which are used to inspire depictions of parts of a painting, as Peter Doig has done in some of his work, can be different, although where there is an obvious IPR involved the artist should try to contact the copyright owner and agree use. But this is hardly such a ‘found image’, it is a wholesale copy, albeit expressed using different colours, etc.
There are occasions when it is very hard to establish who does own the IPR on a photograph or other item which you wish to use. Again Tuymans has no excuse on this point: to have ignored letters from the photographer hardly afforded her any respect in the matter.
Finally, Tuymans is not an amateur who was doing this purely for the pleasure of artistic creation. We have not been told how much he sold his painting for, but I am confident that it was much more than you or I could have afforded to pay, and far more than any of my paintings would ever sell for.
The really simple lesson is that if you, as an artist, wish to use someone else’s work as the basis for yours, then if their work is still potentially covered by copyright, you must make every reasonable effort to agree that use with the person owning the IPR. Particularly if you then intend selling your derivative work.
Isn’t that just respecting the rights of the other artist?