Derivative Work

[Wink Holliday]

US Copyright Office Circular 14: Derivative Works notes that:
To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. [...] Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

So, when I saw this painting:

Which is so very obviously based upon this Gil Elvgren painting,

...it got me to thinking. It's my own opinion that the new painting is not different enough from the original to qualify as a copyrightable derivative work, although Dave Steele, the artist, does very clearly state on the page that I pulled it from (Fair Use as a citation) that it is his copyright. Even if it is considered different enough to qualify, did he actually get the permission from the Elvgren estate to create a derivative work? Would not getting permission nullify his copyright claim?

For illustrative emphasis, I've overlaid the new painting on Elvgren's:

Whaddya think?

[Lenore Lovelace]

Very close to the original, to the point where is the same in too many places.

Did not know about this kind of copyright, so am glad you posted the information.

[Edson Carlos]

looks different enough to me.

[Anita Fixx]

Yeah about the "derivative" artwork...as an artist I can honestly say they encouraged us to copy art in art classs..it's how you LEARN. You learn by copying from the past great artists. There's really no better way to do it...you can draw a glass of water with a fork in it for a few hours but it can only teach you so much..so I hope all those dead greek sculptors aren't pissed at my grade 11 art class for drawing their sculptures at the museum..it was the teacher she told us to do it!

And I don't see it as being derivative or plagrism when I do a painting inspired by Sailor Jerry or Elvgren or whoever...I see it as paying tribute. It's in homage to these artists that I admire. And again it's a great way to practice..I can look at my copy and see if it's good or shite really easily...sure, I can ask people but they usually just say "Oh yeah, that's nice." I need more info then that if I hope to improve at all...
Also nothing is really "New" EVERYTHING whether it's movies, paintings, music learns from the past and builds on it.
Anyway I would never try selling these drawings and paintings...they're for my education and enjoyment only.
There's my long answer. From a long time art student..

[Wink Holliday]

Anita- I agree that copying from the masters is an excellent way to learn technique. I think all art students are encouraged to do that. It becomes a legal issue only when a copy is claimed to be, or sold as, an original work. (Even my high-school art teachers made us visibly credit the original artist before we were allowed to hang anything up on the walls.)

DC- Changing the color of her boots, the length of her hair, and putting a rope in her hands does NOT qualify it as an original work of art. Hell, even the highlights on the boots are the same! I bet if I dug around, I could find the Elvgren painting that he probably ripped off the arm positions from.

Nowhere does he say that it's inspired by, or an homage to, Gil Elvgren. He does say, on every page of a western wear retail site, "**Original artwork by Dave Steele exclusively for hangMhigh all right reserved © 2005"

Grrr.