Follow up Q&A
In a recent post I discussed my experience with Chadwick and Spector and the applicability of (or lack thereof) the ‘transformation’ aspect of fair use to their creative works. Some additional questions subsequently arose that I wanted to take some time to follow up on.
Is there anything to help artists understand the implication or consequence of using a photograph(s) as a reference for a new works, such as a painting or collage?
Well this goes straight to the heart of the issue I discussed in the post – that, from a legal standpoint, there is no black/white, yes/no, bright line, etc. answer to such a question. And more poignantly: underlying rights in preexisting works are not meant to stifle creation, but instead inspire it.
That said, I would make a few comments, emphasizing this is from the legal perspective. Most importantly: if you do not own it, do not use it; if you use it, no matter the fashion, you assume the risk and consequence of doing so. The risk can be reduced or mitigated by getting permission, such as with a written agreement or a license. If you cannot determine who owns a copyright, the answer shouldn’t be, “hhmm, must be o.k. to use” – this can be grounds for willfulness. Instead, move on to another work where the rights can be determined or resort to independent creation.