Sunday Mailbag: Photo Copyright?

Q: I’m a fan of the caricature and realistic paintings of Sebastian Kruger. It’s always puzzled me, though, as to how he acquires the rights to use the source photographs he does. I’m assuming it’s easier to use a photo for caricature since there is so much distortion that there is often no way to say what photo was used. In your case, you often use film images that can be obviously linked to an original photo while not looking exactly like it. Still, there is no other source for the iconic “Here’s Johnny,” Nicholson photo than “The Shining” so it’s obvious that even the caricatures of it have to originate from that film still. I have no idea how all the legal stuff works with that, but I assume that image is still under ownership of one or more entities. My main question, however, is about Kruger’s more realistic works, whether he is painting Springsteen or Howling Wolf. I assume he did not snap the photos himself and I never see a photo credit given. With Kruger’s public visibility, one would think any copyright infringement would be noticed pretty quickly. So how do you think Sebastian arranges it? Do you imagine he actually contacts all of the copyright owners before he paints their photo, or is it possible he just leaves it up to chance?

A: That’s a long question but there were several nuances to it that I thought need to be included.

First off, I have no idea what Sebastian does when using photos for his work. That’s a question for him. He might contact the original photographer or whoever owns the copyrights to the photo he uses and seeks permission or a license to use it as a reference. I seriously doubt he does. There is an exemption to copyright called “fair use”, which allows someone to use a copyrighted piece of intellectual property like a photo without needing permission or a license. There are a number of examples of what can be considered “fair use” of a copyrighted work. Factors like the purpose of the use, how much of the original work is being used, the nature of the original work, and the effect the fair use work in question affects the value or market of the original work all weigh in on whether something is fair use or copyright infringement.

With respect to using a copyrighted property as part of, or the basis of, a new piece of artistic expression like one of Sebastian’s portraits or a caricature, the “transformative” nature of the new work is often at the center or determining if use of the original copyrighted piece is fair use. “Transformative” uses take an original copyrighted work and transforms its appearance or nature in an obvious and major way so that the use of the original work no longer qualifies as infringement… the result is considered a new and unique piece of art.

Over the years many different copyright cases have caused the definition of what is transformative and what is not to evolve, but at its core are two basic questions:

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

Really it’s all about taking the original and changing it enough that the artist creates a new piece of art with its own message, expression, etc. The artist injects their own creativity and aesthetic to the original source material, and the result is something new. Recognizing the source material within the new art does not mean it is not still fair use. Being transformative does not mean it is indistinguishable from the original work… just transformed.

Caricature by its very nature exaggerates its subjects, so it is by definition transformative. Unless the caricature is almost a photoshopped version of the original photo I would imagine the copyright holder of a specific photo would have a hard time convincing a court that using their photo as the basis of a caricature is not fair use of that image. Using a famous movie still is a little different, as a specific photo might not be the source of a copyright infringement claim, but rather the copyright of the film itself. That’s a slightly different conversation where editorial commentary/parody is probably involved.

Fair use gets a little dicier when it come to portraits. Without the exaggeration of a caricature to show immediate and obvious transformation from the source material, a portrait based on a particular photo needs to show it adds “new expression or meaning, new information, new aesthetics” etc. In other words it needs to be more than a skillful recreation of the photo using an artistic medium. The artist needs to show they bring something new to the table. They need to show they took the source material and created something unique and different from it. This can be done with color, painting techniques, incorporating some kind of free expression/editorial comment in it.

A pretty famous case which never actually went to court was the Shepard Fairey/Associated Press dispute over Fairey’s Obama “Hope” campaign image. Fairey used an AP owned photo of Barack Obama as the basis of his “Hope” graphic image. The AP sued him for copyright infringement in 2009. Fairey sued them back. A lot of shady actions by Fairey didn’t do him any favors, but the end result was they settled out of court with no one admitting their position was wrong. It would have been an important precedent had the case gone through the courts, because Fairey was claiming “fair use” due to the work being transformative. The central issue would have been if it really was transformative or not. It was certainly changed with respect to color and to a highly graphic rendering, but it was a literal exact copy of the original photo in proportion and form. It would have been interesting to see what the court would have decided.

Sebastian’s work, while being highly realistic, is also very painterly. He uses color and luminescence in shadows to play with contrast and create a very atmospheric aesthetic to his work. Brush work and the use of the medium are very apparent. And while Sebastian doesn’t do the super exaggerated caricatures he was known for in the 80’s and 90’s anymore, there is still subtle exaggeration in the portrait work he does. His paintings are not projected photos. That, coupled with his recognizable status as a fine artist, would probably make any copyright infringement case against him for using a particular photo as the basis of one of his works a very hard one to win in court. Based on all that, I doubt Sebastian seeks a license for any photos he uses as reference. Maybe Sebastian goes the “Weird Al” Yankovic route. Weird Al always asks permission from the original artists of a song he wants to do a parody of in an upcoming album, and if they say “no” he doesn’t do that parody. He doesn’t have to do this. His song parodies are a great example of “fair use”. Out of respect for the original artist he always asks. Again, only Sebastian can answer the question of how he handles it.

For me, I don’t worry about that. I often use more than one photo for a given caricature anyway, and even if the final caricature is one where a specific photo can be identified as being the main source of reference, the work is always substantially transformative.

DISCLAIMER: Note that I am not a lawyer. I don’t even play on on TV. The above should not be considered legal advice. You should not consider the discussion of legal matters by a caricature artist as a substitute for legal advice from a qualified lawyer, just as you should not take medical “advice” from a talk show host as a substitute for medical advice from an actual doctor or qualified medical scientist.

Thanks to Rick Baldwin for the question. If you have a question you want answered for the mailbag about  cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!