Creating Art Based on Another Artist’s Work

You really love a piece of art you saw in a gallery – but you just can’t afford its price tag. Is it legal for you to repaint that piece of art to hang on your own wall? What if you want to start entering it in art shows or selling it yourself?

Just what are the legalities involving creating art based on another artist’s work?

Andy Warhol / Marilyn Monroe and Campbell Soups
An example many people look to is Andy Warhol, the famous painter who created a series of works based on a Marilyn Monroe photo and then based on Campbell Soup logos. Yes, he did it. And it was ILLEGAL. The photo of Marilyn Monroe was taken by a photographer for the Niagara film. The Campbell Soup logos are owned by Campbell. The Monroe photographer declined to sue. The Campbell Soup company thought about suing but decided they liked the publicity and would ease off. But then Warhol stole work from Patricia Caufield, a floral photographer, and when she sued he realized that he could lose everything because of his carefree ways. So he stopped stealing peoples’ artwork and focused on his own images.

Copyright Exists when a Work is Created
The artist who made the original painting or photograph does not need to file anything in order to own its copyright. They created it. They own it. Their colors and angle and other choices make that version uniquely theirs. Another artist cannot come along and duplicate that work to use or sell for profit. That would be making profit on the original artist’s efforts without permission. It would be like you xeroxing Harry Potter and the Sorcerer’s Stone, and perhaps changing some wording, and selling it as your own.

What If I Acknowledge Who I took It From?
Would it make it better if you put out Sarah Pottle and the Wizard’s Stone – based on J. K. Rowling’s Story? If anything, that makes it more clear that you knew that you were stealing another person’s work and are making that theft blatant. If someone else made the original work, you need permission from them to profit from it. Otherwise in the print world it is plagiarism. In the art world it is forgery.

How About Works that are Out of Copyright?
Copyright does not last indefinitely. If a Grecian Urn is made in the year 2000BC and you paint a lovely still life of it in modern times, that is all right. The original craftsman has long since lost their copyright. Still, if you know the original creator of the work in question, it is considered proper to credit that original person. I shouldn’t be able to publish Pride and Prejudice and claim I wrote it, even if it is out of copyright. I shouldn’t be able to bring an artwork to an art show labeled The Night Watch which is an exact duplicate of the famous 1600s painting by Rembrandt van Rijn and claim it is my own.

On the other hand, if I labeled my painting as being painted by Rembrandt van Rijn and tried to sell it, that would now be forgery.

The proper path in these cases is to clearly label it as YOUR OWN VERSION both on the front and on the back, so there is no confusion. In the title you should clearly label it as “AFTER LEONARD DA VINCI” (or whoever the artist is you are copying) to make clear that you are duplicating their work.

Historic Instances of Copying Art
There are cases where the only reason we know about a famous original painting in history, which has since been lost, is that an art student later faithfully copied it and we have that copy. So, for example, research The Battle of Anghiari. This was originally done by Leonardo da Vinci. That original work was lost. Before it was lost, Peter Paul Rubens made a copy of it. We have to hope that Rubens’ copy was reasonably accurate, since it’s all we now have.

Another case – The Jewish Wedding in Morocco. This was originally done by Eugene Delacroix. Pierre-August Renoir was tasked to create a copy of it. That copy now hangs in the Worcester Art museum. Renoir didn’t try to claim the painting was his own – his task, in a day long before digital photography, was to preserve the image.

In modern times, we DO have digital cameras and can easily record the exact state of famous paintings. So there is no longer the need to document them in oils and watercolors. Also, the issues of forgery are fairly rampant. Thousands upon thousands of artists see their income stolen from them from forgers. So there is a sense in the art work that a person who “steals” another artist’s work is causing harm.

So it’s wise, if you want to embark down the path of copying another artist’s work for display or sale, that you tread lightly. Always make sure the work in question is wholly out of copyright. If you’re working from a photo, make sure the *photo* you are using is not in copyright. For example, the Gardiner Museum paintings which were stolen are only documented in rare photographs which are owned by those photographers. Even though the paintings themselves are old, those photos are fairly priceless and cannot be used without permission by others.

If it is an old painting that you, yourself took a photo of, and that the painting is out of copyright, that is fair game. Still, make sure you explicitly and fully attribute that original painting on the front and back of the painting and in the title.

But that all being said, it’s generally best to focus on your own path of style. That builds the best reputation around your efforts and avoids any shadow of forgery or plagiarism which might otherwise fall on you.

Feel free to chime in with comments or views!