Sunday Mailbag- Too Close to Reference?

Q: I draw more caricatures for free and fun than commissions or through my sign business but a friend recently shared a bad legal experience with me that left a little too much fear in my pencil. He said his company was sued by a photographer(they settled out of court so there was no legal determination) for purchasing and using a freelance artists Illustration of a grizzly bear that the artist referenced their photograph (without permission) to create his illustration. The photographer saw the Illustration on my friend’s company website (they sell high end illustrations) and filed a suit against the company that paid the artist.

My question is, How Close Is Too Close? When I draw characters or do caricatures of celebrities and pro athletes I often use a photo (at least for their faces) as my reference and have always assumed that the pros (like you) must surely do the same?

Is there a safe (rule of thumb) or guide to prevent us from being sued for this, either by the photographer OR the person who’s likeness we are portraying?

A: I answered a similar question regarding fair use and what “transformative” means a few months ago here, so read that one first, but your question is a little more specific.

No, there is no hard and fast rule specifying the point at which a court would determine a piece of art that uses a photograph as its reference is “transformative” enough for it to be considered fair use. The courts have sometimes cited a 10% or more percentage of “transformation” as a guideline, but that is virtually meaningless. How can you measure the percentage of originality vs. reference in something like art? I do not know the specifics of your friend’s case, but I assume the art in question must have been hyper realistic, because had it been painted using a technique that made it very obviously a painting or piece of art, the photographer in question would have a tough time proving it was not transformative enough and infringed on his/her copyright.

Certainly caricaturists use photographs as reference, and usually photographs taken by other people which means photos that are copyrighted by others. However as I said in that linked article above, the very nature of caricature is to change the subject through exaggeration, and that by definition is “transformative”. I can only imagine this becoming an issue if the caricature is question is basically a portrait with very little exaggeration applied, or perhaps if the photo in question is a very famous one and the caricaturist did not do much to make it their own artistically. A caricaturist would have considerable more legal concern over the right of publicity of the subject as opposed to the copyright of the photographer who took the picture a caricature was based from. In fact I have never heard of a case in court where a caricaturist or cartoonist was sued by a photographer over copyright infringement for using a specific photo as reference. There may be some cases out there, but I am not aware of one.

Thanks to Bernard Molek 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!