Can someone sell a painting of a photo that I took?

I have a Facebook account and post pics of my daughter for friends and family only (that is our privacy setting on FB). My aunt showed her friend (an artist) a pic of my daughter and the friend painted a picture of her from the photo. Now the friend wants to charge us $350 to buy the painting or sell it to someone else. Can you tell me if she can do this? What are our rights to our daughters image? FYI: We took the photo with our personal camera.

Jenn on March 9, 2012

Since you took the photo, you own the copyright. So, if your aunt’s friend sells the picture to someone else, legally she should get your permission first. You could ask for a percentage of the sale price, charge her a flat fee, or even prohibit her from selling her copy of your picture.

model photos, painting photos

Comments

Comments


Reply by Anonymous

January 11, 2016

I took a picture of my daughter dancing ballet. I ask my sister-in-law to paint a picture and she did. Turn out beautiful she said that will sell it to me and when she send it it wasn’t the original! It was a bad copy! What should I do? I’m very mad I think she sold it at a art exhibit!


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

Hi. That is a sad tale. Talk to your sister-in-law and see what the story is. If you are unhappy with what you received, you can return the picture and ask for your money back.


Reply by DeeDee

June 19, 2015

Hey,

I took a picture of a baby a while ago and decided to make a rather large painting of that photo. The painting turned out awesome and now the mother of that baby wants me to give the painting to her. I would be completely okay with giving her the painting if it wasn’t so large. It is around 4 feet by 5 feet. The painting took around four weeks to complete and the supplies necessary were definitely not cheap. I mentioned to her that I was planning on selling the painting and that if she wanted it, she would have to buy it from me. She is claiming that it is law that I need the model’s permission (the baby) to sell the painting. Is this true? Or does it not pertain to this situation because I painted a photograph that I took? I even changed some colors around as well.

Thanks!


Reply by Andrew Hudson, PhotoSecrets

January 6, 2016

Hi DeeDee,

There are two issues here: copyright and privacy.

Copyright: You own the painting, and the copyright in the painting, as you took the photo and painted the picture. So the painting is yours (not the mother’s) and you do not have to give it away for free. You can keep the painting for yourself, or sell the painting to the mother. For more information, see copyright.

Privacy: Generally, the mother “owns” the likeness of the baby. This is state law (in the U.S.) so it depends upon the law in your state. This is usually considered “privacy” (or “publicity”) law. Some states do not have such laws, so it may be that the mother has no rights to the image of her baby. Since laws vary by jurisdiction, photographers in these situations typically present a “model release” to the model (or mother in this case) which, once signed, gives the photographer whatever permission is specified in the release. For more information, see privacy and model release.

It seems from your question that no model release was signed, which is a problem if selling the painting. You probably have permission to OWN the photo, and PAINT the photo (since the mother arguably gave tacit permission for the original photograph to be taken), but you may not have permission to SELL the painting, since that would be making money from the child’s likeness. As mentioned, this is state law so the mother would need to consult a local lawyer to see what, if any, recourse she has.

You could make an arrangement with the mother, say split the revenue (minus your paint/canvas costs). Otherwise, you should consult a local lawyer if you want to sell the photo.

Note that I am not a lawyer and this is not legal advice.


Reply by Anonymous

May 2, 2015

Changing a photo into a painting or drawing constitutes a transformative change and is not a copyright violation. It is however, artistic plagiarism if they do not give you credit for your photo as the resource. That’s not illegal, but it’s unethical. While not a crime, there is the potential for a civil lawsuit if you can prove that the new work does you harm by devaluing your work in some way. If they give you credit for the work, there is nothing you can do accept the credit and take solace in the fact that someone likes your work enough to duplicate it.

Now if someone photographs your photo, or copies it electronically without any attempt to change it, that is illegal and can result in both criminal and civil action. In that case, go after them, and go hard!

I am a working artist who specializes in turning photography and movie stills into paintings and drawings. I have done a lot of research into this issue on my own and consulted a copyright attorney — for obvious reasons.

Perhaps this can help.

http://www.teachingcopyright.org/handout/fair-use-faq


Reply by Andrew Hudson, PhotoSecrets

May 19, 2015

PHOTO TO PAINTING

Legally, painting a photo (with no change) is a copyright violation. This is called a “derivative work”. Under U.S copyright law only “the owner of copyright ... has the exclusive rights to ... reproduce the copyrighted work in copies [and] to prepare derivative works based upon the copyrighted work” (17 U.S. Code § 106).

A “transformative” change is a fair-use exception that may apply only when the original image has been altered “with new expression, meaning, or message”. The amount of alteration required can only be determined by a judge at trial.

In the U.S., there is no requirement for giving credit (unless as part of a license) so that would not likely be the basis of a successful lawsuit. However, as mentioned above, simply “changing a photo into a painting” can be the basis of a civil copyright lawsuit, regardless of “if they give you credit for the work” or not.

Note that “turning photography and movie stills into paintings and drawings” is illegal copyright violation if (a) the original work is under copyright protection; (b) you do not have written permission; and (c) your image is not sufficiently different in “expression, meaning, or message”. Note that “transformative” is an affirmative defense, meaning that you would have to prove this at trial, and going to trial can cost big bucks. So be careful!


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