Credit: Painting – Susan Bradshaw
Copyright Law – Can Artists Copy Photos?
Imagine a budding artist inspired by a photograph of a hibiscus in full bloom—a dazzling image of vibrant petals and delicate details. The artist transforms it into a striking painting that garners attention at a local gallery. But the celebration is short-lived: the photographer claims copyright infringement and demands its removal.
This real-world dilemma highlights the challenges artists face when navigating Australia’s copyright laws. Can they draw from existing works without crossing legal boundaries? Or has digital accessibility made these questions harder to resolve?
Copyright Law Basics: What’s Protected?
Under Australia’s Copyright Act 1968, photographs are classified as “artistic works,” granting creators exclusive rights over their reproduction and use. When someone uses a photo as a reference, the law assesses whether the new work reproduces a “substantial part” of the original.
This “substantial part” isn’t just about the size or percentage of the photo used—it’s about the essence. Did the artist replicate the unique composition, lighting, or perspective of the photograph? If so, they could be treading on dangerous ground.
Cases
When size doesn’t matter
Australian courts have tackled this issue, often with unpredictable outcomes. In Tylor v. Sevin (2004), the Federal Court found infringement even when only a small portion of an image was copied, noting that originality isn’t measured by size but by creative input. In this case, a talented American photographer sued an Australian travel agent for using his photograph of Hawaii on her website without permission – the agent had to pay over $20,000 in legal fees!
Meanwhile, in IceTV Pty Limited v. Nine Network Australia Pty Limited (2009), the High Court clarified that common, unoriginal elements do not attract copyright protection. These cases underline that the devil is in the details. In this case, ICETV made an electronic programming guide using time and title information partly obtained from Nine Network’s published TV schedules.
The Rise of AI raises grey areas
AI tools are shaking things up in the world of copyright.
These tools create new works by using existing images and data, and sometimes even imitate photos.
Since Australian copyright laws haven’t fully caught up yet, creators need to be careful when using AI.
Creative Commons might be a safer path
For artists seeking inspiration, Creative Commons licenses provide a way to use photographs legally. Websites like Flickr and Wikimedia Commons host images that can be used under specified conditions, such as attribution or non-commercial use.
These platforms can offer solutions – read the terms!
How can this apply in practice?
To understand how this can play out, take the case of a bedding business commissions an artist to create promotional artwork.
The artist uses a photograph of a blooming hibiscus as inspiration, turning it into a painting that adorns the company’s brochures. The campaign is a success, but the photographer notices and files a copyright claim. The poor company now faces potential legal costs, reputational damage, and halted marketing efforts.
As you now learnt from this blog, all of this could have been avoided with proper permissions or use of Creative Commons resources.
Tips for Artists
It is best to use your own photos or if you are drawing inspiration from existing works, make sure to transform them significantly by adding unique elements. Always check your sources and carefully verify the licence terms. When in doubt, seek written permission from the original creator to use their work. Finally, be cautious with orphan works (images where the copyright holder is unknown), as they can still pose legal risks.
Why Work with Sharon Givoni Consulting?
Navigating copyright law is tricky, but you don’t have to do it alone. At Sharon Givoni Consulting, we offer tailored advice to help artists and businesses protect their creativity while respecting others’ rights. From reviewing reference materials to drafting clear agreements, our expertise ensures you’re legally covered.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.