Q: I’m a photo researcher for a small publishing house. I'm trying to clarify my understanding of plagiarism and copyright infringement. We have a photographer's permission to make and use a drawing of his original photo. It is a picture of a doe standing in a field, interacting with her fawn. The drawing closely copies the photo. My question is, would copyright infringement be an issue if permission had not been obtained? My understanding is that facts cannot be copyrighted, but artistic design that includes facts, may be. Using the deer photo/art as an example, I assume the shape of the deer is fact and therefore not copyrightable. Is the drawing an example of copying artistic design, or only copying fact? If this is not a copyright infringement, is it plagiarism if the artist were to pass it off as his or her own work without acknowledgement? If this would have been copyright infringement, could changes have been made that would eliminate the infringement?

         A: First, let me address your question about plagiarism and copyright infringement. Plagiarism is the act of taking someone's ideas, photos, writings, etc. and representing them as your own original work. Plagiarism and copyright infringement are two separate and distinct acts. Plagiarism is wrong based on ethical, rather than legal, definitions. Copyright infringement is an illegal act. Plagiarism may also be copyright infringement; only copyright infringement is punishable by law.

         Would copyright infringement be an issue if permission had not been obtained to make the drawing from the photo? Yes, most definitely. The drawing and the photo are very similar in content. One of the exclusive rights of a copyright holder is that only he or she can grant permission to make and use a derivative work. You are right, facts cannot be copyrighted. But you are not really dealing with facts here. You are dealing with an actual photograph. A work must be in fixed form in order to be copyrighted. In this case the photo is the fixed form.

         Changes could be made to the drawing in order to avoid copyright infringement, but the drawing would have to be substantially different from the photo. For example, another fawn could be added and the doe could be shown laying down in another direction.

         Since you have permission from the person who took the photo to make and use a derivative (drawing) of the work, it is neither copyright infringement nor plagiarism.

Rohn Engh, veteran stock photographer and publisher of "PhotoRESEARCHER Newsletter," has provided on-line information to photobuyers, photo researchers and photo editors for two decades. For info: http://www.photosource.com/photobuyer/.
      

           

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