Bo's bLAWg: Creative Commons - Free Public Licenses - pmp-art.com

Here's my question. I get most of my reference photos for my pastel drawings from a website called www. http://pmp-art.com/ .  Photographers put their photos on this site for artists to use as references to paint.  The site says that this can be done without copyright infringement.

 My questions are: 1. Can I license the art work I produce from this site? 
2. Can I or should I copyright my interpretation of art from these reference photos? 
Thanks a bunch,  Debbie B

Dear Debbie,

You pose a very interesting pair of questions, the answers to which relate directly to a copyright topic I had wanted to mention:  Free Public Licenses. 

My answers to your questions are “not commercially” and “yes, but” respectively.  You have to take into consideration the application of the Free Public Licenses purportedly offered through the PMP-art.com website.

Before we go there, however, here is some background on Free Public Licenses:

There are alternatives to the conventional copyright system.  A number of them are grouped under the term Copyleft (vs. Copyright; get it?)  These are rights systems that turns copyright upside down – or ‘right side left’ as the case may be.  Instead of prohibiting use without a license from the copyright holder, copyleft automatically allows permissive use, but on certain underlying terms.  These terms are set by the copyleft organization to which the copyright holder subscribes.  In the case of http://pmp-art.com/ , the terms are purported to be set by the copyleft group, Creative Commons.

The http://pmp-art.com/ website has led you to believe that you cannot infringe on the photographers’ copyrights by their informational posting as follows:

“Paint My Photo (PMP) is a social networking site dedicated to sharing Photos for artistic inspiration without fear of infringing copyright.”

However, you can’t stop reading there.  Read on:

“Note the following that applies to PMP. Please consider all photographic material uploaded by members to be under a creative commons attribution non-commercial license...  This basically means you cannot download and sell members photos or use them commercially in any way.”

There are four alternative Creative Commons “CC” licenses.  They are:

The “BY” Attribution License with the
icon that allows user Licensees to copy, distribute, display and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these;

The “SA” Share-Alike License with the
icon whereby Licensees may distribute derivative works only under a license identical to the license that governs the original work;

The “NC” Non-Commercial License with the
icon that allows Licensees to copy, distribute, display, and perform the work and make derivative works based on it, but only for noncommercial purposes, and

The “ND” No Derivative Works License with the
icon that allows Licensees to copy, distribute, display and perform only verbatim copies of the work, not derivative works based on it.
The specific terms of the NC Non-Commercial license are spelled out on the CC website at the following link:  http://creativecommons.org/licenses/by-nc/3.0/legalcode

You will note that paragraph 4b of the NC license states:  “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

The PMP website goes on to say:  “You can of course make paintings based on photos and sell them.”

I beg to differ.  If the NC License is applicable as stated, you are limited to non-commercial use only.  Selling a painting is a commercial activity!   Giving away the paintings you make is not commercial.  Trading it for something of value would also be commercial.  Similarly, you cannot license your derivative works for money, but could offer your derivative copies subject to the same terms as afforded you by the NC License.

Additionally, as provided in paragraph 4c of the linked NC License, you must provide notice of the Author of the underlying work (the photograph upon which you painting is based) and their name, unless they have expressly released you from those obligations.  If you fail to abide by these NC copyright notice and credit terms, you are subject to a claim for copyright infringement and/or breach of contract(!)

As stated above, you can copyright your adaptation, but must register it as a derivative work.  Authors under CC licenses are not giving up their copyrights, they are only allowing your use on specific terms.  Similarly, you must allow use on the same terms, but if Your work is infringed by someone who does not abode by such terms, you would have a right to claim an infringement of your copyright. Hence, it may well be worth registering your copyright, just as the photographer may have registered hers.  Make sense?

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

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