Digital art of a public figure

'Is it legal', 'can I do this' type questions and discussions.
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jackiel1989
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Digital art of a public figure

Post by jackiel1989 »

Hello,

I have drawn Amanda Gorman delivering her poem at the 2021 inauguration. I modelled her pose from a photograph that I found online. I understand that the work is technically derivitive in nature and therefore may be subject to getting the photographer's approval for me to publish/sell my piece. However, there are so many nearly identical photographs of her in this pose/position from different photographers, news outlets, and the recordings that it is impossible to tell whose[/i] exact permission I would need and if those who took the other similar photographs could also claim against me?

I wasn't sure how best to approach this as it was a public event with multiple cameras and recording devices, being broadcast internationally.

Any advice or paths to explore would be greatly appreciated.

Many thanks in advance,
Jackie
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AndyJ
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Re: Digital art of a public figure

Post by AndyJ »

Hi Jackie,

If it is not possible to say which of the photographs from the event might have been your main source you are in a stronger position to defend yourself if any individual photographer comes along to claim infringement. Copyright only exists in what is original, and using the current legal approach to defining original it is that part of the work which expresses the creative spirit of the author. Photographs have always faced a difficulty that doesn't apply to the fine arts, which is that, at their most basic, they are merely copies of what is in front to the lens at the time the shutter is pressed. The usual way that a photographer may add creativity is in the choices he or she makes just before pressing the shutter: the arrangement of the subject, the lighting, the camera angle, the depth of field and indeed the actual moment the shutter is pressed - what Henri Cartier-Bresson called the decisive moment. As you can see, in the sort of reportage situation you have described, a photographer actually has very few personal creative choices available to them, so that the degree of originality is much reduced. You as a graphic artist actually have many more choices. You can select the view point even if you weren't at the event, you can alter the lighting by the way you render shadows, you can choose the medium, you can exclude or include features (eg the background) as you wish, and so forth.

So provided that you did make some or all of these choices, I think you can reasonably argue that you used the idea of the poet Amanda Gorman, but created your own expression of her without using a substantial part of any single photograph. However as a form of insurance, I would advise you to make a note of the alternative photographs you found from that event by the various different photographers, just in case any one of them decides to challenge you!
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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