Making Changes to Existing Artwork: How Much is Enough?

There is a terrible, but common misunderstanding among beginning designers, that there is a certain percentage of change that needs to happen to make an image your own. I’ve heard everything from 20% to 50% to 80%. Unfortunately, this is very much false. There is no percentage of change that actually makes up for originality. It is never ok to use an image that does not belong to you in your work.

Copyright is actually a federal law that protects all creative work that exists published or unpublished in some tangible form. What this means is that ideas, thoughts, or even spoken words though creative and likely original, are not covered by copyright, until they are documented, be it written out, recorded, drawn, etc. Once the creative work is in tangible form, the copyright is instantaneous, meaning that the original creator does not need to file any special paperwork, they simply own copyright by having produced an original creative work in a tangible form. This includes you and all the original work you’ve created as well.

Original Creators Have Very Specific Rights

Copyright law protects the original artist in a number of ways. It provides the original creator what are called exclusive rights. Only the original creator is allowed to:

• Reproduce the copyrighted work
• Display the copyrighted work publicly
• Prepare derivative works based on the copyrighted work
• Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Of all of these exclusive rights, the most important to our argument is the third one: Prepare derivative works based on the copyrighted work. According to federal law, only the original creator has the right to prepare derivative works. This is very important. Remember the original misconception that there was some percentage of change necessary to make someone else’s work you own? Nope, not so much. The minute you admit to starting with someone else’s work, and changing it, you are admitting to a copyright violation. The only person who can make any changes to that work is the copyright holder.

Reference Material vs. Direct Referencing

I have students ask all the time about using images found online as reference material for their work. Reference material is not the problem, direct referencing is. Let me try to explain.

Let’s say you want to do an illustration of an elephant. It would make sense that you would want reference material so you can accurately draw your elephant. You might collect photographs, other illustrations, video, diagrams, etc. These images might come from books, magazines, and of course, internet image searches. It is ok to study these images to draw conclusions on how elephants look and possible angles and techniques for representing them, however, it is not OK to use any of these images as a direct reference for your illustration.

You cannot draw or trace that image. You cannot assume that by turning a photograph into a drawing via traditional or digital methods that you have not violated copyright. That tracing, no matter how abstract you made it, is a derivative work. Because you started with an image that was created by someone else, anything you make that is dependent on that image is a copyright violation and no amount of photoshopping will change that. It’s best to not even look directly at the image if you are drawing freehand to avoid any direct copying. You could also see about making a trip to a local zoo and taking your own photographs to avoid any problems with direct referencing as you own the copyright of your own photos.

Getting Permission

After reading that last section I’m sure that some of you are feeling a little discouraged. In some cases it may be difficult or even near impossible to produce your own material to use for direct reference. You may not be able to get to the zoo, for example, to photograph your elephant. Or travel to Belize to get that perfect beach picnic picture you’ve had in mind for the project you just started work on.

In cases where you need to use an image in which you do not own copyright, you can use that image if you get proper permission to use it. Many of you are already familiar with stock photography websites. There are many companies that have huge databases of images that can be used for a fee. By paying the fee and agreeing to the terms of that company, you are abiding by copyright law. The owner is giving you permission to use the image and once you’ve obtained that permission, you are free to incorporate that image into you work.

Be very careful to read the terms and conditions. Make sure you understand the rules for using the image. Some companies will allow you to make derivate works and others will only let you use the image as is. The copyright holder gets to decide what kind of permission to allow and you must abide or you are breaking the law.

In cases where you want to use an image that is owned by an individual, go for it. You can always try to contact an artist directly to ask permission to use an artwork. Describe your project in some detail and ask to use the image. You can offer payment if that is appropriate to the situation. If they do decide to allow you to use the image, make sure to get the permission in writing to protect yourself. Also, make sure to make note if they had any restrictions including derivative works, certain mediums, limited use dates, etc. That permission works like a contract between you and the copyright holder, make sure you both clearly understand the transaction so no legal problems will pop up later in the project.