I wouldn't say there's an issue there tbh. It looks referenced, not like a copy of the photo, and does not look at all traced. I'd say it's 100% fine to sell it.

I am really not sure why referencing is a gray area?
I mean, every kind of art class I have attended from figure drawing to 3d texture creation will teach you to reference and use references. I'm really not sure where this stigma comes from?
I have personally be taught that all art should have used a reference to be created. Weather its just what you remember seeing real life in front of you or images online.

I think you are in the clear? I don't personally see why you wouldn't be.

I mean it must come from that.
But I more wonder why people who don't do that think other wise?
Just it seems like people are scared to say they referenced something for there work when they really shouldn't?

This honestly makes no sense though.
Do people expect, for example, pokemon fan artist to know exactly how ever single one of the 700 and something pokemon look?
'

"Sometimes people say they "referenced" a picture when they actually mean they redrew it."

Actually, that's called a "master copy".

This is what I will never understand ever in my life. It makes no sense.

I think you may be confusing referencing with tracing. Tracing is a grey area, referencing is not. Referencing is a tool to help an artist to better their work, tracing is often used as a cop out (some have used it to learn to good effect but it is not a method I would personally recommend). It is never a bad thing to reference. It should be noted too that referencing =/= copying.

If the picture was traced, I would say don't sell it without the photographer's permission (and, probably, paying a fee to the photographer). This is clearly referenced, though, not traced. I think you're fine.

I see a lot of folks suggesting that referencing is okay as long as it's not traced.
This is true, but not the end of the story!

Referencing is indeed sometimes a grey area because it matters how MUCH one DIRECTLY references any given, copyrighted image.

One need not trace a photo in order to create a copyright violation. If a piece of art is substantially similar "as judged by a group of peers" to an existing, copyrighted artwork (one must remember that photos are artworks!), then it may be infringing.

If I may use an example:
Here is a photograph by the original photographer:
http://alannah-hawker.deviantart.com/art/Ocelot-138197365

Now, these artists are NOT in the wrong as they got permission to use the photograph, but please note the "substantial similarity" of these artworks. One can very easily look at the photo, then at the artwork, and know that the photograph was used directly to paint the ocelot (and background):
http://vianaarts.deviantart.com/art/Ocelot-Bic-Ballpoint-Pen-358968665
http://heatherzart.deviantart.com/art/Billy-166193609
http://sekhmets-child.deviantart.com/art/Ocelot-212693436
http://sau21866.deviantart.com/art/Ocelot-294190610
http://masteroflightnings.deviantart.com/art/Ocelot-433255611
http://icakeyyy.deviantart.com/art/Ocelot-352192508
(etc!!)

Substantial similarity is the part that is indeed a 'grey area' and has to be a judgement call. In your case, I would say your referenced art is NOT substantially similar; indeed it looks as if you simply referenced the pose and did not copy the photo verbatim! Which is great! Indeed, referencing is a powerful tool, and it is not something to be looked down upon. There is a method to the madness, though. For example, I am using a photographic reference currently for a painting I am working on. The end result MIGHT be quite similar to the photograph, so in my case I obtained written permission from the photographer before I started, to make sure I am not infringing should my finished artwork look like his photograph too similarly.

I hope this explanation helps! As someone that has dealt with this issue on a professional level, I can say that I believe you are in the clear and you have used your reference in a way that does not infringe upon the rights of the photographer. :)

Nambroth hit it spot on. Especially that if it's too close to the original photo, you can still run into issues. (ie: That Obama poster...) I agree that this isn't the case with your drawing.

Also though, I think another way to go about it is to use many references of the subject instead of just a single photo. Or better yet, if you have the ability/resources to, take your own references then you can get the exact pose/lighting/etc you want, and the reference will do the work for you.

This way you aren't tied to making your whole composition around a single image you find on the internet. Also if you have the time to make some quick sketches of your multiple references, will leave you with a better understanding of your subject and how they work.

Edited at 2014-06-01 04:06 pm (UTC)