As a result of the publicity surrounding Shepard Fairey’s use of an Associated Press photograph, taken by Mannie Garcia, as reference for his very successful Obama Hope poster, a university inquired into standard stock-industry practices for the use of photographs as reference for fine or street art. The university wanted to advise their students on appropriate practices. I supplied them with the following:
Any image offered for licensing as rights-managed by its creator must be properly licensed for any use whatsoever, including use as art reference. A license can be obtained by contacting the creator, his representative or the copyright holder. As a practical matter, many creators will charge a very small fee and request a credit, depending on how the image is to be used. In cases where merchandising or very wide distribution of the resulting art work is likely, the creator of the original image is likely to negotiate a very substantial fee.
As far as I know, if the photograph in question is being offered for licensing as royalty-free or microstock, the normal basic licensing fee entitles the artist to use the image for art reference or in almost any other way without additional compensation. The terms and conditions of royalty-free and microstock licenses do vary. Therefore, it is strongly recommended that anyone contemplating use of an image as art reference read the terms and conditions carefully before licensing the image.
In the Fairey case, the AP threatened to sue, Fairey preemptively countersued, and the AP filed a counterclaim, accusing Fairey of copyright infringement. The AP seeks the dismissal of Fairey’s lawsuit and unspecified damages, including any profits—estimated at over $400,000—Fairey and his company, Obey Giant Art, made from the image. Fairey claims fair use; however, Fairey previously used a David Turnley photo in another design and obtained Turnley’s permission. This clearly shows Fairey recognizes that such situations require obtaining permission and giving appropriate credit. The design based on the Turnley image was not used on merchandise.