This isn’t the post I intended to write this week. My editorial calendar has a post about visual inspiration and how these can lead to unintentional copying. How you can accidentally be a copycat.
But then, Design*Sponge published an article about the ethics of copying and giving credit. If you haven’t read it yet, I encourage you to read it. It’s incredibly well written and tackles some sticky subjects. I applaud Grace for being brave enough to say what she did both in the post and in the comments.
Speaking of the comments, I went back a few days afterward and read them. I was glad that the discussion was civil, open, and productive—that’s a rare feat online these days. But what drove me to ditch my editorial calendar, was this comment from Grace:
The practice of tracing source images is one I’m not comfortable with, period. I honestly had no idea people did that until I actually dated someone who did. I brought it up only to be defensively lectured on how that is very common (which is true), and as long as there are “significant” changes made, it’s legal (which I don’t think/know is entirely true). I have yet to see a lawyer address that definitely online, and believe me, I’ve asked MANY of them to address that.
I can’t say that I’ll definitely answer the legalities of tracing source images, but here’s my attempt.
The legal framework
Let’s pretend you called my law firm and told me that you had traced a source image when creating an illustration. After putting it in your shop, you got a cease and desist letter from the creator of the source image. So you want to know what you should do.
To decide a course of action, we’d talk through three things:
- Is the source imagery protectable under the Copyright Act?
- Did you copy the source imagery?
- Did your copying rise to the level of an infringement?
This list is what the creator of the source imagery must show to win a copyright infringement lawsuit against you.
Is the source imagery protectable?
We’ve talked before about what is and isn’t covered by the Copyright Act. But the short answer is the Copyright Acts probably protects whatever you are tracing.
Did you copy the source imagery?
Once we’ve got that out of the way, we need to discuss if you copied the source imagery. Since you started the phone call by telling me you did, we won’t spend too much time here.
Did your copying rise to the level of an infringement?
Now is where things get tricky. Because we now have to think about two difficult legal concepts: misappropriation and fair use.
These two topics are really what the lawyers are going to be fighting over. And this is one of those frustrating situations when you get a different answer from each lawyer about the same facts. (You can cue the head-banging now.)
There are two parts to misappropriation. First the creator of the source imagery must show that you copied protectable elements of the work. As we’ve talked about before copyright doesn’t protect things in the public domain, facts, and ideas.
The creator of the source imagery must show that you copied protectable elements of the work.
Where this often plays in with source imagery is that the reason you are tracing is to make things look realistic. You are tracing a photograph of a monkey because you want your viewer to know they are looking at a monkey. No one can copyright the proportions of a monkey. Proportions are natural and thus fall into the facts category. So we need to keep this in mind when determining how similar the source image and your illustration are.
Next we want to look at what the intended audience would see. Would they think the source image and illustration are substantially the same? (This is where we get the Internet wisdom that as long as they aren’t substantially similar you are okay.) But there’s no hard and fast rule here. We are going to look at only the protectable elements and compare how similar they are. And then look at the work as a whole and see if they have the same “concept and feel”. And then make our determination as to what the audience would think.
Which brings us to the conclusion that if you misappropriated the source image, then it is possible you committed copyright infringement.
The reason that I say it’s possible, is because fair use of a copyrighted work is not copyright infringement.
I’ve discussed the nitty gritty of fair use here. But when it comes to tracing source images two factors will be the most important. These are:
- How much did you transform the source image?
- What impact will your work have on the market for the source image?
One of the elements of fair use considers if you transformed and added value to the source image in making your illustration.
Let’s go back to our monkey. Say you traced a photograph that was a close up photo of a monkey and included it in a larger rainforest illustration. While you did use the monkey exactly, you added value to the photograph by giving context to the monkey. You provided him surroundings by adding in the flora and fauna of the rainforest. The more you transform the source image, the greater the likelihood of fair use.
The more you transform the source image, the greater the likelihood of fair use.
The other element in play here is if your illustration removed a market for the photographer to sell or license his photograph. Will your illustration serve as a market substitute for buying the photograph? Will your illustration make it impossible for the photographer to license this photograph? Here the greater the impact on the earning potential of the photograph, the less likely it will be considered fair use.
So what does that mean for you?
When tracing is probably legit
Tracing source imagery for your personal use to increase your skills or to work out ideas is probably legit. While these likely would be misappropriation, they would likely be considered fair use.
When tracing probably isn’t legit
Exactly duplicating source imagery probably isn’t legit. (For example, making a photorealistic drawing of a photograph without making any changes.) This would be misappropriation. And likely isn’t fair use even if it was for non-commercial use because there’s no transformation and you remove the possibility of the photographer licensing his photograph for that purpose.
When tracing maybe is legit
Everything else goes in this bucket. It gets the lawyer answer of “it depends”. (I know everyone hates that answer.) But I can’t give you a one-size fits all answer.
You’ll have to make the call about how much you trace, how similar you think is safe, and how much you transform it into something else.
But when you go this route, I urge you to be transparent, because this decision has ethical implications as well.
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