Sunday Mailbag: Copyright of Reference?

Q: When someone is hired to do a caricature of a famous person for a client (say Mad magazine), do they need permission of the copyright holder of the photo they are using for reference? I imagine a lot of your caricatures came from a photo or screenshot originally.

A: The specifics of a certain case will always play into it, but in general no… a caricaturist does not need the permission of the copyright holder of a reference photo they work from to do a caricature from it.

One of the rules that the courts use in determining what is copyright infringement and what is “fair use” of a copyrighted property is the “transformative” test. In simple terms, if someone takes a copyrighted property like a photo and “transforms” it enough that is considered a separate, unique piece of art, then that is fair use. What is considered transformative? There are no hard, fast rules, but factors like how much of the original work was used, how much the transformative work resembles the original work, the context or form of the purpose of the new work. The following two questions have become a focal point in determining whether a work has been sufficiently transformed to be considered a new work:

• Has the material taken from the original work been transformed by adding new expression or meaning?
• Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

A caricature, by its very nature, is transformative. You as the artist are creating your own, unique interpretation of the subject using exaggeration of features, personality, presence, etc. Even if the photo you used is a famous one, or is at such a unique angle or has some other unique elements about it that a viewer familiar with that photograph might realize it is the one you used for reference, the act of caricaturing the subject is 100% personal and creative, and would result in a new and original piece of art. How far you push your exaggerations or how much editorial commentary you add only further adds to the transformative nature of the work. Short of a portrait head/cartoon body “lollypop” sort of caricature there should be no issues with copyright infringement of the photo reference used. You could probably even get away with doing a digital manipulation of an actual photo to create a caricature if you took the exaggerations far enough.

Shepard Fairly was famously embroiled in a legal back and forth over his “Hope” image from 2008:

The Associated Press accused Fairly of copyright infringement for basing his image seen on the right above (which I can use here thanks to fair use… non-commercial educational purposes) on this photo on the left by Mannie Garcia (ditto). Fairly was actually the one who sued the AP for making the accusations. The AP claimed the work was not “transformative” enough, being little more than a “paint by numbers” job over the exact photo. Fairly did not help his case by submitting false images and deleting others to hide his actions, leading to a criminal investigation on top of the civil case. They settled out of court.

Of course this is all subjective… if challenged only a court can determine if a work is sufficiently transformative to be considered fair use of another work.