Coming back after a month-long break after my main account @lettershoppe on Instagram was disabled I want to share some of my lessons learned when it comes to copyright.
Like so many other artists, I used images found online to reference in my work. This was wrong on many levels and I’m saddened that it took my Instagram being taken away to learn this very hard lesson.
It’s important to do your own research and not just follow suit with what other artists are getting away with online.
After 7 years of posting art consistently to Instagram, I grew upwards of 120k followers and was finally making a stable income from my work. So it was a huge blow to me and my family for all that work to just disappear due to a very easily avoidable mistake.
I'm now back to square one, and ready to start over building up my audience on my new account @lettershoppenation. This will be the place where I create artwork promoting good mental health, self-love, and cannabis culture in a way that is much more ethical.
After some research after my account was taken down, below are some common questions I’ve been getting about copyright that could go a long way in helping your artwork be more original.
Please keep in mind, I am not a copyright infringement attorney, nor have I studied law in any way. So take this advice with a grain of salt.
DO I NEED TO ASK PERMISSION BEFORE DRAWING SOMEONE I FOUND ONLINE?
Yes! Unless that image was purchased from a Stock site or is royalty-free you need permission from the copyright owner.
The owner of the photo could the model in the photo, the photographer, or a business owner that paid for that image to be taken. It’s hard to know who to contact, but it’s important that you don’t make a move using that reference until you have written permission.
I find that the best luck in trying to find the right contact starts with the photographer since they will likely still hold usage rights in some way, or know the appropriate person to contact next.
More often than not, people are totally fine with you using their image as long as you tag and credit them when posting it online. Just be sure to very honest about your intentions with using those photos, especially if there is the possibility of you turning that piece of artwork into a product later on.
WHAT IF I JUST USE THAT PHOTO TO PRACTICE AND POST BUT DON’T PLAN TO TURN INTO A PRODUCT?
Using an image just to post online is still considered “promotional use” since you are still profiting off that image to build an audience online. Even if you don’t consider yourself a business yet, you could still get in trouble if the copyright owner finds out and reports your post.
This is why it’s important that even if you are an account that curates content, that you ask for permission first before reposting that photo to ensure to are not violating that person’s copyright. Even if you tag and credit, that copyright owner can still report and have that image removed from your profile.
If you just want to practice at home, but not post the image that you referenced that’s totally fine. Tracing images and relying heavily on a reference as an artist is encouraged and a great way to learn.
IS IT OK IF I USE A REFERENCE IF I MAKE THE ART MORE TRANSFORMATIVE?
This is a bit tricky, but let’s change the format of this question to, “Will the person who owns the photo recognize that I stole their work?” Yeah, that kind of burns doesn’t it? Because it’s really more about being caught than being ethical.
In the eyes of the law in most states, if you change the artwork enough it’s fine but this is often quite difficult to determine and doesn’t stop the copyright owner from possibly suing you. But in my opinion, if you are just using photos for references for posing and not capturing the likeness of that photo or the person in it that’s ok, but please tread lightly.
CAN I DRAW FAMOUS PEOPLE AND SELL THAT ART ON PRODUCTS?
Yes and no. For the most part, public figures are fine to draw and post online since their likeness is not copyrightable, but if your artwork looks too similar to a reference, you may be infringing on the rights of the photographer that took the photo.
This is something artists have been doing for a long time and most get away with it, but that doesn’t make it ethical or stop it from being illegal.
A photographer taking a picture of a celebrity is protected by the “free press” clause, and an artist drawing a celebrity is protected by “free speech” but by selling that image you go against that person’s “right of publicity” which is that person exclusive right to use their image for commercial gain.
If you draw a cartoon of a celebrity or have a unique style in drawing that person, that will put you in better legal standing, but it’s still a fine line. For example, the rules in California is that an artist can sell a drawing of a celebrity if that piece of art “contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame.”
WHERE SHOULD I SOURCE MY IMAGES FOR MY ART?
The best place to do it on your own camera. Take photos yourself and use them as references is the best way to make your art more original.
Aside from using your own camera roll, you can check out free stock photos on websites like Unsplash and Pexels which have been my favorites so far. Of course, if you are willing to cough up some cash to use some photos I’d recommend iStock and Adobe Stock.
HOW DOES COPYRIGHT WORK WHEN IT COMES TO PHRASES?
Just like images, phrases are again tricky in the eyes of copyright. For the most part, short phrases can not be copyrighted since they convey more of an idea or apart a common phrase of the English language. When it comes to selling artwork that uses a common short phrase, things get a bit more strict.
For example, if you were to use a phrase commonly remembered from a popular movie, song, or brand that would be considered copyright infringement since people would be buying those items off based on them already being a fan of those previous works.
Another thing to keep in mind is whether or not that phrase is old enough to be apart of the public domain. If that author died before over 70 years ago or if a corporation now owns that copyright it’s 120 years.
FINAL THOUGHTS ON COPYRIGHT
After reading all of the above, plus what I hope will be your own research that you can now move forward in your creative career without running into any copyright issues. More than anything, I want you to think of copyright as less of a legal issue and more of one based on integrity.
As artists, it’s heartbreaking to see our artwork stolen, edited, and repurposed without our permission. So why do so many illustrators and designers think it’s ok to rip off photography we find online to use in their artwork?
As creatives we should only help lift each other up and never steal from each other to try to rise to the top faster.