Say, a group of photographers, Alice, Bob and Craig, take photographs of a non-copyrighted everyday object, an apple. Then, they decide to showcase it in public (without relinquishing any copyrights apart from taking a look).

A painter, Peter, who never has seen an apple in his or her life, takes a look at these photographs (studies them). Then, s/he paints a painting of an apple.

Does the painter, Peter, infringe copyright of Alice, Bob and Craig.

One step further, if a creator, c, commissions the painter, t, who never has seen an apple in his or her life, to paint a picture of an apple by studying these photographs, do c and t infringe copyright ?

What if, the painter, t, uses a mechanical device (drives a toy-car with tires wet with paint on a canvas using a remote control) to paint an apple after studying these photographs ?

Edit 1 : I am asking applied AI/Machine-Learning context. So Jurisdiction that I want to know is US, Australia, Singapore and EU.

Edit 2 : Even though I ask "copyright", I also want to know from Intellectual Property point of view. I want to know text of law, interpretation of law, precedence if any and your opinion.

Edit 3 : removed the maths notations.

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    You should indicate a jurisdiction. In my jurisdiction (Germany), the first and most important question, which needs to be considered, is if there is actually a copyright on the photograph. The object depicted is not the main consideration for answering this question.
    – Roland
    Aug 27, 2021 at 8:13
  • Does this answer your question? Paint from someone's photo - copyright question Aug 27, 2021 at 14:10
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    @Roland It is an accepted practice here on Law.SE to not specify a jurisdiction if answers for any jurisdiction are acceptable. It is also accepted, even when a jurisdiction IS specified, to provide answers for other jurisdiction as well, to avoid multiple questions differing only in jurisdiction. See law.meta.stackexchange.com/questions/1252/… and other questions linked there. Aug 27, 2021 at 14:34
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    @BlueDogRanch I don't think the linked question is a duplicate, although is surely closely related. That question is specifically asking about a painting "based on" a photo, which is he definition of a derivative work, and asks about the sufficiency of giving credit, which is an issue not raised in this question. Aug 27, 2021 at 14:38
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    Please remove the math notation. Aug 27, 2021 at 21:34

1 Answer 1


Under US law, and I believe under the laws of most countries, each of the various photographs of the apple would be protected by copyright. Thew initial owner would be the photographer, or perhaps the photographer's employer, in each case.

Copyright protects expression, including both words and image. It does not protect ideas. The idea of an apple is not protected. The specific representation of a particular apple would be.

If the painter imitates the specific feature of the apple shown in the photographs, to the extent that the painting is a derivative work of one or more of the photos, then the painter needs the permission of the copyright holder(s). Without that permission, creating the painting is infringement of copyright.

However, if the painter merely took the general idea of an apple, and created a new expression of that idea, without using any of the specifics of the photos, there there would be no infringement.

If the photos were instead images of an imaginary thing, perhaps a dragon, or some invented machine of building perhaps, with the images created by perhaps a compute animation program, or by photographing a model, the legal rules would be the same. If the painter simply used the idea from the photos, there is no infringement. If the painter used sufficient specific detail so that the painting is a derivative work, then permission is required.

Exactly how much detail must be used for a work to be considered "derivative" is a matter of judgement -- ultimately the judgement of a court if the matter is disputed. There is no clear bright line making that distinction.

That C has commissioned the painter T to create the painting is not relevant, unless C is the copyright owner of the photos, or has secured permission from the copyright owner(s). If C validly grants permission, then there is no copyright issue even if the painting is a derivative work.

It does not matter what technique or technical means T uses to create the painting. T may use a brush, a pallet knife, a toy car, drips of paint, or a compute drafting program. If, by whatever means, T creates a derivative work, then permission is needed or else it is an act of infringement merely to create the work. If the work is not derivative, then no permission is needed. Copyright law applies no matter what specific technique the creator of an image uses, provided that human creativity is involved.

  • Thank you very much @david siegel. "Exactly how much detail must be used for a work to be considered "derivative" is a matter of judgement -- ultimately the judgement of a court if the matter is disputed. There is no clear bright line making that distinction." <-- this answers my question. Aug 30, 2021 at 5:58
  • I asked this question in the context of a mathematical formulation (computer program) known as Generative Adversarial Networks (GANs). Researchers are commissioning this program (GAN) to study faces of actual people from both copyrighted and non-copyrighted photos and create new faces of non-existing people. I want to know the legal angle. Thanks Aug 30, 2021 at 6:02
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    @EdwardAung Some are also using GANs to create “art” by feeding images of famous paintings. The contributions of the original artists to the output is more identifiable than the faces.
    – ColleenV
    Aug 30, 2021 at 16:08

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