March 17, 2014 Copyrighted Photos as Reference? Posted In: Uncategorized

spaceMarine-scarface

Lately I’ve been thinking about the gray areas of copyright law after recently noticing the box art for Space Marine while browsing in a comic book store. I immediately recognized the pose and facial expression of Pacino from Scarface. I know a lot of artists, including me, use copyrighted material as photo reference, but at what point does it become “altered” enough to be considered original? I wonder if the artist could be in danger of violating the “Warranty of Originality” clause in their contract:

Illustrator represents and warrants to Client that, to the best of Artist’s knowledge and belief, the Work assigned by this Agreement is original and has not been previously published or licensed to any third party.

Would Universal Pictures be able to, or even want to, sue Games Workshop? How much, if any, damages would they be entitled to collect?

This isn’t the first time I’ve noticed this. It’s something that actually happened quite a bit in the 8-bit gaming era:

Contra for NES. Source: www.klustr.net/contra/articles/trivia.php

That’s Michael Beihn in The Terminator. Source: http://www.cannotunsee.net/post/1051633464/metalgear

In their defense, these illustrations were produced in the 1980s, before Google image search and digital cameras. If you wanted a photo reference of something, you had to search through magazines and books or take your own photos, which involved developing film. This also meant you couldn’t instantly see the photos you were taking. Still, though, that’s a damn fine rendering on the Metal Gear box. I remember seeing that as a kid; it made me want to play the game.

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