In the March 2009 issue of The Artist’s Magazine, Vera Curnow explains some basics about working with reference materials and copyright law.
Working From Reference Materials
The line between inspiration and plagiarism needn’t be confusing.
By Vera Curnow
“I wish I’d thought of that!” Most of us, at some time, have expressed this sentiment when viewing the creative work of another. What we do with this thought, however, can turn simple admiration into plagiarism. When it comes to art, imitation isn’t a form of flattery—it’s copyright infringement.
As an artist, I particularly enjoy constructing stories through narrative paintings—building convoluted scenarios with various and often unexpected objects, subjects and symbols. My style is more whimsical than traditional, and my compositions usually include unrealistic twists in their arrangements. I’m not concerned with the viewer “reading” the story I intended. In fact, when asked, I don’t explain my story line or message but encourage viewers to find their own interpretations. It’s amazing to hear their explanations. Because of one painting which features crows, I was even accused of being a Wiccan. (Yikes!)
Sometimes I build my story from some image that inspires me, such as an object in a photo or advertisement in a magazine or book. Sometimes the story comes from a preconceived idea rooted deep in the darkness of my cranium. I love making up fictional characters and scenes. However, when I need to be more exacting, I often run into the problem of finding good subjects to work from. And that’s when I go on the hunt for reference materials that might suit my purpose.
With copyright laws being such a hot topic and legitimate concern, this practice is very risky—especially in light of the vague definitions supplied by the courts. We artists are left to interpret terminology like substantial similarity and fair use and to determine if our work qualifies as a parody or if painting a scene of Disneyland or a Harley-Davidson bike would result in legal retribution. To confuse the issue of copyright even further, urban legends and misconceptions abound regarding what is and is not a copyright infringement. You’ve heard some of them, such as the one about changing the original color, composition, background or medium by some arbitrary percentage. If the ordinary observer can recognize it as derivative, however, you’re in trouble!
Nonetheless, I’d venture to say that the majority of artists who don’t work from life have a file cabinet bursting with reference photos torn from a myriad of printed resources. I do. I’m also sure that those same artists save photos of artwork for inspiration. I do. What I don’t do, however, is copy photos. I might use the artist’s palette of colors, an interesting texture or a variation of a concept.
By the way, you can’t copyright an idea. Take, for instance, Thomas Arvid’s popular oil painting series of wine bottles; there are now many artists who have adapted this subject to create their own works—some even working in Arvid’s style. Since the bottles, paraphernalia and compositions differ by artist, it’s legal.
For the purpose of this article, I’ve developed a painting using elements from a number of references. I admit that I feel pretty gutsy about sharing these with you in such a public forum.
I’m confident, however, if I hadn’t exposed my sources here, you would never have doubted the originality of The Key. Finally, let me leave you with the safest advice: The best way to avoid any potential infringement is to work from your own photos, still lifes, models and imagination. Please read that sentence again!
Below I’ve identified what references I used for the various elements:
- I used two reference books on birding for the blackbird images, flipping this one over in Photoshop.
- I used the plan from an article in Architectural Digest.
- The inspiration for the piano originated from a photo at the Palette & Chisel Gallery in Chicago.
- I manipulated the picture of a goblet from Architectural Digest in Photoshop to change its shape.
- The birdcage appeared in an ad in Family Circle magazine.
- My reference for the woman was from an ad in Art Business News.
- A Painting by Peter Adams inspired the ocean scene in the inset behind the woman.
- The sky colors from a photo in Modern Maturity were used in the background and set the tone for the painting.
- The idea of descending apples came from an ad in Architectural Digest.
- The reference for the dress was from an ad in the Santa Fe Decor catalog.
To learn more about copyright, fair use, and substantially similar and derivative works, see intellectual property law expert Leonard DuBoff’s articles in The Artist’s Magazine’s March 2007, April 2007 and July/August 2007 issues. You can also read the articles online at www.artistsnetwork.com/article/about-copyright, www.artistsnetwork.com/article/fair-use, www.artistsnetwork.com/article/copying-artwork and www.artistsnetwork.com/article/copying-photos.
Vera Curnow, founder of the Colored Pencil Society of America, has written magazine articles and authored and compiled eight books on colored pencil. Her artwork has been published internationally, featured in solo and group exhibitions and included in corporate collections. Curnow’s studio/gallery, the Main ARTery, is located in Rising Sun, Indiana. See her website at www.veracurnow.com.
This article appeared in the March 2009 issue of The Artist’s Magazine, which is available for order as a digital download. Click here to learn more.
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