As I borrow and rephrase Plutonius’s advice to Laertes (from Hamlet, Act 1, Scene 3, line 75), I do hope Mr. Shakespeare will forgive the liberties I have taken. Fortunately, since I wasn’t able to ask his permission, his original line is now in the public domain. But I still can’t claim it as my own.

An artist for whom I have considerable admiration and who has influenced my own work has been struggling lately with her students’ and others’ “borrowing” her compositional concepts for their own commercial use. What’s wrong with this practice? Aren’t they selling their own paintings? The answer to that is a matter of ethics. Yes, they did lay the paint on the paper. But no, since the concept and the original composition did not spring directly from their own minds, it is not really theirs, any more than the title of this article is mine.

Perhaps it would help to ask what constitutes “original” art? Many artists might see the same view of a subject and have the same general idea of recreating the image in paint. The originality lies in the artist’s perspective, interpretation, and treatment of the subject. This includes the parameters within which the subject is placed (the placement on the paper, as well as how closely cropped it is), the angle at which it is depicted, lighting, tone, and mood, as well as what the artist chooses to emphasize or minimize. These differences become quite apparent in sketches made by different artists. But it is true in photography, as well. No two photographs taken by different photographers are likely to be exactly the same.

What if two artists base their paintings on different sections of the same photograph? Can they claim that their works are “original”? Only the artist who shot the reference photograph can ethically claim the resulting painting as solely his own work. Why? Because the original photograph was part of the concept of the paintings, and the photographic perspective was selected and composed or cropped by the workings of that artist’s mind. In that case, the photographer may be able to claim originality in the painting. If the painted treatment, however, is not original – for instance, if the treatment copies the style of a different artist – the finished painting still might not be considered “original” even though the artist did shoot the original photograph. Though the composition was original, the style was not; therefore the finished painting is still considered derivative.

In that case, is it ever acceptable to base a painting on someone else’s photograph or style? It can be for certain purposes.

I consider it acceptable use if someone else takes a photograph and either requests that a painting be derived from it or grants clear permission for it to be used as the basis for a painting. But in either case, the artist must not claim full credit for an “original” work of art, and appropriate credit should be given to the photographer.

In the same way, for certain purposes, it can also be acceptable to base a work on someone else’s style. For instance, a teacher might ask all her students to work from the same photograph or painting. Isn’t that granting permission to develop work based upon someone else’s? Yes it is. However, producing derivative (non-original) work in a learning environment is very different from deriving financial profit from non-original work. Students have long been encouraged to study, copy, and imitate other artists’ work. The purpose, however, has been to help those students learn skills and techniques, not to gain financial profit from someone else’s creations. Derivative work can be educationally profitable, but it should not be used for financial gain. And it should never be presented as “original.”

Non-original artwork should be neither sold nor entered into art competitions. It is often recommended that an artist retain any reference materials used (such as original photographs and sketches) so, if challenged, he or she can verify the originality of the artistic concept. Although U.S. artists are automatically considered the copyright holder of all original work, the copyright can be registered officially through the U.S. Government Copyright Office. This registration makes it much easier to prosecute violators.

“But what’s the big deal?” some people might ask. “What harm does it do if I sell a copy of someone else’s painting or photograph that I’ve painted myself?” In the first place, the unrecognized photographer is usually not being compensated for his contribution to the work; and your derivative work reduces the value of another artist’s original work because it is no longer unique. In the second place, not only has your work created competition for the original, but (being derivative) it could be mistaken as poor quality output by the original artist, thus compromising that artist’s professional image. In the third place, presentation of derived work as original is extremely damaging to the long-term reputation of the derivative artist. Word gets around the art community, and such short-sighted actions as selling derivative pieces as originals can leave a permanent scar on an artist’s name.

(Please note that I do not have a background in law and am not attempting to offer legal counsel. The comments presented here are the philosophy that I try to follow in my own practice, and I feel that they are a good guideline for most artists in a similar situation to follow. If you face a sticky ethical question, you are encouraged to seek appropriate and knowledgeable legal advice in your own locale.)