I have seen many an artist on this site inquire about copyright, and how it works. I've seen many different opinions coming from both sides. But there is one thing, right or wrong, that I keep coming back to.....Ive heard from many that you need permission before posting any likeness to sell on the internet ( i.e. Fine Art America ) . On both this site and many other similar art sites, I have seen no shortage of famous people( it would be tough to count) , alive or dead , with their likeness in sketches , paintings, etc... all for sale. So, to the point of needing permission... I find it hard to believe that ALL of these folks ( and there are many ) are getting proper permission before posting. Maybe Im naïve to this fact, but with the amount of "famous" likenesses on Fine Art America alone, it just seems implausible that ALL are getting proper permission to post & sell. Does anyone share my view , or am I on an island with this one?
I don't disagree, however this has been discussed here at ad nauseam. The Terms of Service under Contributor TermsContent has two important statements,
1) You are solely responsible for the Content that You upload or post to the Website or any material or information that you transmit to other Contributors., and You represent and warrant that: (i) You own the Content posted by you on the Website or otherwise have the right to transfer rights in the Content
2) (ii) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other intellectual property rights of any person. You agree to pay for all royalties and fees owing any person by reason of any Content you post on the Website.
That puts it on the person offering those images to prove they have the right to do so. FAA is a really small operation and no one really has the time to vet the hundreds of thousands of images here.
if you do a famous person you need to get the permission of the original photographer and the famous person. most people that do that here take a chance at a lawsuit. there are some that sue. i'd be surprised if anyone had real permission. many are shocked that they can't just steal it from google. though in the case of google, you can no longer filter it by large sizes, only the smaller ones. i guess it would cut down on theft.
What about taking a photo of a famous person statue or a printed image of a famous person. Not a copy but an original photo. Is that would be considerd violation or as another original photo? Thanks
There are two issues that are being conflated somewhat.
1) Copyright is held by the original creator of an artwork. Copying the original artwork creates what is called a derivative work and needs the permission of the original creator. Under limited circumstances the derivative work can be transformed enough to be considered by some jurisdictions to be a new work. There have been court cases recently that fall on both sides of the issue, so each case must be considered separately.
2) The right to control ones likeness, also known as the right of publicity. This is varies from jurisdiction to jurisdiction as well, but since FAA sells and ships everywhere, a case could be brought at anytime. In general, in most places, people can control the use of their likeness for commercial purposes. Art is typically excluded, but products aren't, and because prints produced by POD sites such as FAA are available in unlimited quantities they may be considered merchandise by a court at trial.
The estates of certain celebrities are very active in preventing sales of images using their likenesses on products without a license.
So basically, people who are using photographs of celebrities taken by others as references for drawings or paintings are very likely to be in violation of both 1 and 2, unless they've secured licenses.
If you want to be safe, don't do it yourself. :-)
*Not a lawyer. Just a photographer who has attended 20 or more seminars given by some of the best IP lawyers in the U.S. over the course of 35 years.
I totally disagree. I know artists that do very original likenesses and they believe they are well inside the laws. I got my education in copyright directly from a guy named Joe Simon. Joe was a comic creator and comic book editor and also the founder of a magazine called Sick. And a friend. Look him up and read his books. As he spent a good part of his life defending his own work he had a good bit of knowledge. I won't get into all the reasons why any likeness or right to publicity is always protected, but creators of satire and commentary have rights too. Ever look at a cartoon of a famous person? I am sure you have seen some political likenesses.
But hey, I am not a lawyer. It's up to you to make sure you are doing the right thing.
BTW my friend that does drawings of famous people often gives a print to the person and often gets one signed or the original signed. And sometimes they sketch him back. As an artist you should know your rights and the limitations on that. And you are not going to find it on a POD site.
I personally think the often given blanket advice to just file a DMCA is terrible. You have more rights than just a takedown. You have a right to compensation if your work hasn't been licensed, or it is being sold by someone else and you're getting nothing.
On a POD site where it's probably some lowlife that is hard to find and probably not really making any money, sure file a DMCA.
But if it's a legitimate business using your image, get a lawyer or sign up for someplace like Pixsy or Imagerights. Don't just do a DMCA. I assure you when you issue a takedown, someone else's copyrighted work will simply be put up in your's place and the person at the other end will have learned there are no real consequences to taking from Google images. I've seen it happen countless times.
Get your images registered with the copyright office too. Unless you're independently wealthy and have a bone to pick with someone, you'll need that before a lawyer will take your case. It's not that hard to do and last time I recalled it's only $55 for up to 750 images.
But on the original issue at hand, publicity rights and copyrights are two different things and I think David explained it well. Publicity rights are a bit more confusing because the rules tend to vary quite a bit across international borders.
as said ,i'm the undead, not a lawyer. but if you photograph a statue, another picture, its still a copyright violation. it doesn't suddenly become yours. just like if you went to the store, and licked all the donuts, they aren't yours because you marked them. trust me on this, it doesn't work. and chances you won't be allowed to go back to that store again...
a famous person has rights to their own face and how its used in things, which is why its technically not allowed. like do something with Mr T and he will not pity you, he goes for blood. and shoot a bowl from chihuly and you will have to take it down right away. do something disney and you'll have lawyers parachuting from the sky taking you out.
in the end you shouldn't bank on doing something that has built in fame. like michael jackson has fame, but their family will go after you, i wouldn't take the chances. even the escher family goes after people using that name.
your best bet is not to rely on doing famous people.
i don't know how it works if you post someone who isn't famous. and then they become famous, that may get confusing.