Painting a Photo of a Painting of a Photo of a Painting- in Copyright Law

Q: Under Israeli copyright law can I take someone else's  copyrighted photograph and turn it into a work of art? What about the converse, if I take a work of art and make photographs of it?

A: While the Copyright Act (2007) grants the right to make a copy or derivative work to the owner of the copyright, it also permits "fair use" of a copyrighted image. Borrowing from the law in the United States, it states in Section 19 that:

In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following: (1) the purpose and character of the use; (2) the character of the work used; (3) the scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) the impact of the use on the value of the work and its potential market.

(For a blog post on a 2009 decision in the case of Football Association Premier League (FAPL) v. Ploni, permitting unlicensed streaming of sporting events, see here. And for a fair use checklist, see here.)

Under the first factor, if a work is transformative of a prior work and alters it with new expression or meaning, it gives significant weight to a claim of fair use (e.g. a parody, criticism). The second factor considers how the original work is used. The third factor considers how much of the original was copied and used in the new work both qualitatively and quantitatively. The fourth factor can sometimes be the most important, namely, how the derivative work will impact the commercial value of the original.

If you take a copyrighted photograph that is licensed for a fee and manipulate it and turn it into a work of art you might have a defense of fair use. The more the original photograph is distorted from its original appearance the better your chances. If you only use a small portion of the photograph your defense under the third factor will be stronger. Finally, under the fourth factor, you can probably make a strong argument that your artwork, especially if it's one of a kind, does not take away from the potential licensees and income stream of the photograph. Regarding whether you can make a painting of a photograph, however, see here. And for more on this topic including some legal cases about artwork based on photographs see the Wikipedia entry for "appropriation art."

Photographing a work of art and making commercial copies of it may be more difficult to defend, see here. The original artist retains the copyright in the artwork, see here. If you are not using the photos for any purpose other than to sell it (e.g. parody, education, commentary) it will be hard to argue that the photo is transformative. Also if you are using a photograph of the entire work of art, you won't have a defense under the third factor. The fourth factor seems a bit stickier. It is hard to argue that a photograph will seriously compete with and devalue a unique work of art. In fact, the argument is raised, that photographs of the Mona Lisa, for example, is what drives tourists to go see the original. (One case in England with an interesting twist involved the issue of posting photographs of public domain artwork online. I'm not sure how it was resolved.)

Also, in both cases above, you must be aware of the moral right that the creator of a work has (codified in Chapter 7 of Israel's Copyright Act.) The author of a work has a moral right to have his name idnetified with the work and the right that no distortion shall be made of his work or any modification where such acts would be prejudicial to his honor or reputation. So taking a painting and adding your name to it would be a violation of the creator's moral rights.

For more on Israeli copyright law see here and here.

For the Jewish law perspective on copyright see here and here.

Note: Because Israeli law is very similar to US law on the fair use issue, some of these links discuss US copyright law.