Photo editing and copyright

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  • I have a couple of questions concerning photographs and using them as reference.
    I was told that if a photo has been changed over 70% then it does not violate the copyright law, is this true and how is this 70% defined?

    If I were to use a photo as reference and sketch a picture how does the copyright work in this case?

    If I were to use a photograph as reference for digital manipulation or digital painting where the photo is the basis for my new artwork is it an infringement on copyrights?

    Thank you.
  • Unfortunately, there is no numerical rule or percentage guide about how much one must change a copyrighted work in order to avoid copyright infringement. As you note, such a rule would be impossible to measure, and courts do not try.

    Instead, the standard for copyright infringement is "substantial similarity" -- a court looks at the original, subtracts out those aspects that are common property (two sculptures of jellyfish will inevitable have certain similarities that trace back to the actual characteristics of jellyfish) and then tries to decide if there is a substantial similarity remaining between the two.

    If you draw a sketch from a copyrighted photography, you certainly can infringe copyright if your sketch is substantially similar to the original photo; simply doing the drawing from sketch does not absolve you of liability for copying

    When the copyrighted original is used as a basis for a new work of art, there are two possibilities for avoiding infringement. First, the new art work may no longer have a substantial similarity to the original. In that case there is no infringement, even though the new work was "built" from a copyrighted work. Second, the new work may be a fair use of the the original because it transforms that original into something new that does not compete in the marketplace with the original. These transformative uses are probably the favored kind of fair use, but it is difficult to judge sometimes where an infringing derivative work stops and a transformative fair use begins.
  • I was thinking that the outlines are very similar. For example a picture of a tiger where I use the outline and the pose of the creature (I dont know how to conjure up a tiger I mid jump I need a reference) and then I fill in the color and details.

    If there is so much greyness with the copyright issues then its almost impossible to be sure I am not infringing it. Afterall, there is no way for me to go take a photo of a tiger, its not like trees that are everywhere.
  • If you are worried that your new art work might infringe an original, perhaps you could find a picture to use as a model that is no longer protected by copyright -- a drawing or photo published in the US before 1923, for example. Also, you could look for a photograph that is licensed to allow derivative works. A Creative Commons license, for example, is a legal mechanism designed to permit others to build creatively on an original; some allow only non-commercial uses while others permit both commercial and non-commercial derivatives. If you go to the Creative Commons web page ( and select the button along the top that says "Search for CC licensed works" you will be able to do a targeted search for Creative Commons licensed works in several major repositories of content. I did this for CC licensed photos in Flickr and found over 150 pictures on a search for "tiger jumping."
  • That is wanderful! Than you so much for the link.

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