legal implications of drawing from photographs?

[tolworthy]

My game has graphics based on photos. So far they fall into two categories:

(1) I have written permission to use the photos and they are then filtered.

(2) I have hand drawn new images using several photos as reference, but I am confident that there is no legal risk since my new creation is very different from any of reference materials.

However, sometimes I see an old photo that I would love to use, by making a hand-drawn copy. But of course this would be recognisably similar to the original. What is my legal position here? I remember when the movie E.T. first came out, Spielberg's people threatened to sue any newspaper that published a photo of the alien before people saw it in the cinema. Some newspapers got around this obstacle by having an artist draw their own version of it. Does this imply that hand drawn pictures are legally safe? Or does it just mean that newspapers have big legal budgets so they can take calculated risks?

[Philippe]

This is a grey area, it's hard to say what constitutes safe or unsafe. I guess it very much depends on what your hand-drawn versions look like. For instance, if you simplify the drawing a lot, use different brushes, modify the color scheme or texture patterns and/or mix different images, you're probably safe. If you just trace from the original image and copy the shading with a pencil or something like that, I'd be more careful (also depends on where the images come from, think Flickr vs. Vogue ad).

I remember that the T-shirt company Threadless (prints user-submitted designs, based on a voting system) pulled a shirt a while ago because it was traced from a Getty stock photo, although I'm not sure whether they did it because of legal threats or because they felt it was an embarassment.

I am not a lawyer. (I'm a graphic designer by education, though.) ;)

[tolworthy]

This is a grey area ... I am not a lawyer. (I'm a graphic designer by education, though.) ;)
Thanks for the reply. I was afraid that I would get flamed for even suggesting it, but I must emphasize that so far none of my hand-drawn stuff is anything like the original photos.

The problem I have is that everyone like to claim ownership even when they don't have it. For example, I recently saw a wonderful 19th century photo that I would like to adapt. Most likely this was on public display or published long ago, so is now out of copyright. But there is no incentive for the web site owner to check this - it is much easier for him to say "we own the web site, so pay us some money."

[Yard Sale]

Just don't make replicas, you should be A-OK. To be super-safe just altar the reference. Its kind like how we cant make a Tetris clone with 'tris' in it, but we could call it Tetroclone if we wanted. Gota love system manipulation. ;)

[Anthony Flack]

It is so depressing that our culture of copyright has gotten to the point of having discussions like this, isn't it?

[Yard Sale]

Just imagination how its going to be in say, 10 years Anthony. The gaming industry is going to get a new position up.. "Copyright Manipulators" .. ;(

[impossible]

It is so depressing that our culture of copyright has gotten to the point of having discussions like this, isn't it?
I was thinking the exact same thing. At some point the paranoia surrounding this stuff becomes ridiculous...

Chances are you'll only have problems if you're copying some big corporations IP. So if you "old photos" are Super Mario Bros. screenshots you might end up in trouble, otherwise I wouldn't worry about it.

[LilGames]

Can you not combine parts of various photos into a new composition and then draw it based on that new composition?

[tolworthy]

It is so depressing that our culture of copyright has gotten to the point of having discussions like this, isn't it?
It's even worse for music! I am in a choir that sings some stuff by Thomas Tallis, who died over FOUR HUNDRED YEARS AGO. The choir is happy for me to record its music, but I still can't use it because the music publisher demands high royalty fees for any recording, enforced through the Mechanical Copyright Protection Society. The publisher did nothing except choose and copy the music, they didn't rearrange it or anything. Yet legally they can claim some kind of ownership. It's crazy.

[papillon]

I have seen at least one discussion on digital art stating that if you layer multiple photos together and use them as the basis for a new work that is not substantially the same as any of the originals, you are in the clear - which also implies that if your artwork does look extremely similar to one of the originals, you aren't.


The publisher did nothing except choose and copy the music, they didn't rearrange it or anything. Yet legally they can claim some kind of ownership. It's crazy.


If you can dig up an ancient manuscript version to sing from rather than a recent publication, are you safe then? :)

[soniCron]

I have seen at least one discussion on digital art stating that if you layer multiple photos together and use them as the basis for a new work that is not substantially the same as any of the originals, you are in the clear - which also implies that if your artwork does look extremely similar to one of the originals, you aren't. I don't know what the laws are like over there, but in the U.S., this is not passable. It would be considered a derivative work which is protected under copyright law. It's the same with music "sampling." No label will publish music with samples without prior written permission from the owner of the sample. That said, I believe Fatboy Slim won a case against a jazz artist because Slim's audience wasn't the same as the jazz artist's, and therefore wasn't causing any damage. I think my brain is melting.

[tolworthy]

If you can dig up an ancient manuscript version to sing from rather than a recent publication, are you safe then? :)
Yes, but that means reeducating the choir master to do my bidding and ditch his collection of fashionable music by major publishers :) That was last week's headache, and a finally gave in and bought some stock music from www.royalty-free-classical-music.org (a wonderful site by the way, definitely the best place on the web for what it says)

[DanMarshall]

Bear in mind that you need to clear the photograph with the person that took it, not the person in it.

Legal copyright lies with the photographer, NOT the subject.

[soniCron]

Right. For that, you need a model release. I work with stock photography for various things and I hardly ever touch anything with people because of all the hoops you need to jump through.

[tolworthy]

Bear in mind that you need to clear the photograph with the person that took it, not the person in it.
Legal copyright lies with the photographer, NOT the subject.
But I am guessing that I am safe if I create a composite image using different photos of a famous deceased person. For example, my Javert (the policeman who hunts Jean Valjean) is loosely based on several photos of Matthew Arnold, the Victorian poet. I don't think anyone could identify a particular photo from the drawing that appears in the game.

[tolworthy]

I work with stock photography for various things and I hardly ever touch anything with people because of all the hoops you need to jump through.
Yes, it's a minefield. I was checking the fotolia.com message boards and they are even demanding model release for a photo that shows nothing but a small section of the roof of a nondescript building. Scary!

[soniCron]

But I am guessing that I am safe if I create a composite image using different photos of a famous deceased person. It depends. It's not uncommon for a family member to own the rights to the likeness of their famous relative. I know there were some issues with Charlie Chaplan's daughter raising a fuss at some point.

[gosub]

You can use anything in the public domain without paying anyone anything. As far as US copyright law is concerned, anything published before 1923 is in the public domain.

> I recently saw a wonderful 19th century photo that I would like to adapt

The photo itself (assuming it was published before 1923) is in the public domain.

http://www.unc.edu/~unclng/public-d.htm

http://homepages.law.asu.edu/%7Edkarjala/OpposingCopyrightExtension


-Jeremy

[tolworthy]

The photo itself (assuming it was published before 1923) is in the public domain.
That's what I'm hoping. It was definitely taken in the 1850s, and (fingers crossed) I hope it was published or displayed soon after. I live in Britain, and the Copyright, Designs and Patents Act 1988 says that an old photograph can be copyrighted at a later date as long as it has not been displayed publicly before that date. So if I find an old family photo that nobody else has seen, I can publish it in a book and claim copyright for 25 years.

On the other hand, the photograph was taken in Ireland, and I am not aware of a similar restriction in Ireland.

On the third hand, the photo is very distinctive (and my hand drawn copy cannot hide that) and I intend to use it to illustrate the villain of Les Mis, M. Thenardier. So it is conceivable that whoever owned this family photo could threaten me under English law.

On the fourth hand, I live in Scotland and our laws are different, though they generally follow English law closely. Oh why is life never simple? :)

[DanMarshall]

As with most things in this (or any) business, it's better to be safe than sorry.

If you can't afford one, find a friend of a friend who IS a lawyer to look into it for you, or don't do it.