Is it an infringement to draw illustrations with photographers' photos and use them for commercial purposes?

Using the photographer's photographic works as illustrations, and because of commercial use, whether it is infringement can not be generalized, and it can be divided into non-infringement and suspected infringement.

First, it does not constitute infringement: "Painting is painting, and photography is photography. The two are completely different in technical means and materials. The painting for reference is used by the painter as the material, but it is only a reference, at most it is improper and does not constitute infringement. " Although photography and painting are sister arts, their forms of expression and creative methods are completely different. Article 22 of the Copyright Law stipulates that the copyright owner can use it without permission or payment 12 cases. Item (10): Copying, painting, photographing and video recording works of art set up or displayed in outdoor public places.

Second, suspected infringement: Although Article 22 of the Copyright Law stipulates that the copyright owner can use 12 cases without permission and without payment, Paragraph (10): Copying, painting, photographing and video recording works of art set up or displayed in outdoor public places. However, if the photographic works are not set up or displayed in outdoor public places, but obtained by copying, shooting or copying, and then created into paintings for commercial use, it is suspected of infringement. At the same time, Article 46 of the Copyright Law stipulates eleven kinds of infringements, including (4) distorting or tampering with other people's works, and (5) plagiarizing other people's works.

In judicial pragmatism, making other works (non-similar works) in different art categories should not be regarded as infringement if we only learn from his composition thought; If it is used for commercial purposes and obtains considerable benefits, it should be considered as suspected infringement. At least from the perspective of fair liability and causality, the borrower (beneficiary) can also be determined to give corresponding compensation or compensation.