Ethics of painting from another person's photograph

[Band]

I've been seriously considering the idea of getting pack into wildlife painting when I retire and I keep seeing photographs of animals, landscapes, trees, rocks, etc. taken by others that look like good reference material.  My painting will never be professional quality and I have no intention of trying to sell any even if it did become that good.  Given that, I'm wondering about the legality and ethical considerations of using such reference material.

I can say that my uncle put me under his wing many years ago and gave me some lessons.  At the time, he was an amateur wildlife painter and he regularly used magazine pictures of wildlife as his subject matter.  Over the years he became an exceptional painter, transitioning from "pretty good" to "really good" to "phenomenal".  Before completing his transition from pretty good to really good he switched from copying pictures to using his own pictures, and later simply to drawing and then painting without the benefit of reference material at all.  But I always wondered about the use of those magazine pictures in the beginning, and now that thought has come up again as I consider my rebeginnings into painting.

I would want to at least ask permission of the photographer as a courtesy where possible.  Some pics may be from the web where contacting the photographer should be pretty easy but a magazine picture might be a little more difficult.  How about the legality of using pictures from others if you can't contact them?  And would the photographer reasonably expect some kind of payment in this situation?

[Fl0und3rz]

Legally, you own the copyright to your painting.  Ethically, you would want to credit the photographer, if you were in a situation where acclaim for your work would become an issue for you or anticipated that it may become so for the photographer, I would think.  You could always ask permission, beforehand, but it is not required for your stated purposes.

[Bean Counter]

Whether or not your paintings are professional quality, you're still subject to copyright laws if you produce a derivative work of someone else's intellectual property. That's your buzzword for legal research in this discussion: derivative works. 17 U.S.C. § 101. Unfortunately the answer is one I hate: it depends. It depends on how closely your painting resembles the original work, but because federal courts take a pretty conservative position defending the rights of the originator, you could wind up spending a lot of money on an ambulance chaser if you like skating on thin ice. I've you've ever watched a movie based on the book and read the book, you can get an idea of what a derivative work looks like. Or one of Weird Al Yankovic's songs. Think Nicholas Sparks bent over and let Hollywood make millions off The Notebook simply for a reference in the credits?? Yes, the photographer has the right to tell you to jump in a lake, pay him $25 for a flat fee, or demand 50% (or more) of your future income stream off sales of the paintings. You own the canvas, brushes, and paint, but that's his/her intellectual property being displayed no different than if you pirated a music CD or photocopied a print.

I haven't heard of anyone getting sued for violating a copyright for a non-commercial purpose, plus there's the question of the likelyhood of actually getting caught if you're just painting in your house and the painting never leaves your home. Most IP shark lawyers  come out of the woodwork where an artist actually bothered to register their copyright (uncommon) and it was a big corporation that stole the image and used it commercially. Go visit a photo forum and you'll see this discussed All. The. Time. Not being able to identify the photographer isn't an excuse and simply crediting them wont keep you from getting sued, either.

Also keep in mind that an artist has three months from the date of the original publication to register his or her copyright with the USCO for a retroactive registration against infringements so if I shot a photo of a deer yesterday, published it on here today, and you painted it and sold it for lots of money tomorrow, I have up to three months to register it and drop the hammer on you. Bigly. Even if its been more than three months and they register it late, any subsequent infringement can lead to the infringer being sued. Tread carefully. 

[Fl0und3rz]

If it will never be commercialized, you'll not ever be known or contacted, even if it was an actual derivative work, and you did not have any "fair use" defense, which you likely would, in your described circumstances. 

Anyone who would spend money on an attorney to sue someone for a non-commercial derivative work is wasting their money, for which, far too many attorneys would gladly assist you. 

[Bob33]

If you plan to do anything with the paintings other than hang them in your house, you'd be well advised to get the photographer's permission first.

http://painting.about.com/cs/artistscopyright/f/copyrightfaq5.htm
https://www.bellevuefineart.com/copyright-issues-for-artists/
https://copyrightlitigation.blogspot.com/2010/03/4th-circuit-fine-art-paintings-from.html

[Band]

Thanks for your responses.  When the time comes I can see myself asking people like Boneaddict, Ricochet, and Brute, etc. how they feel about using some of their pics as reference material.  What finally prompted me to ask is the last pic Bone posted on the "straight on" topic.  Love the pose being struck by that buck walking toward the camera.

[Bob33]

Thanks for your responses.  When the time comes I can see myself asking people like Boneaddict, Ricochet, and Brute, etc. how they feel about using some of their pics as reference material.  What finally prompted me to ask is the last pic Bone posted on the "straight on" topic.  Love the pose being struck by that buck walking toward the camera.

I would guess there are quite a few members who would be honored to let you use their photos for free. The beauty of that is the photos don't need to be perfect since they're used as a reference only.

My father grew up on a farm in upstate New York. I found an old black and white photo of the farm and had an artist paint a rendition of it. I look at it in our home just about every day and appreciate it.

[grade-creek-rd]

I Googled "Open Source" images and this site popped up...and maybe you could find a few more, but at least you won't have to worry about being sued.

link:
https://pixabay.com/

also, if your ever looking for anything specific let me know and I will see if I have anything that you can use...I would love a print of a painting done from one of my photos. you can see some of my stuff at my website: www.jasonbrooksphotography.com

Grade