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Photography Question 
 

Selling photos to have painted


Someone has asked me if they buy a photo from me could they do a painting of it. I told them it was copyrighted & they can't do it without my permission. They said they'd like to work out something. Is it worth giving permission & how much would I charge for the use of my photo? A friend suggested I not do this.
Any comments are welcome.
Thanks,
Peggy


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11/9/2008 6:52:07 AM

 
Alan N. Marcus   I am an eternal optimist thus I believe people are generally honest with a moral compass that points true. If one of my pictures strikes a chord and becomes admired, I would be flattered. If they wanted a copy to hang on the wall or use as a draft for a drawing or painting, I would just hand it off to them, no questions asked. After all, nothing ventured nothing gained.

If I were famous like Michelangelo or Grandma Moses, I would consider accepting an enormous fee. Under this scenario I would take a check and sign the work of art.

Alan Marcus


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11/9/2008 7:52:23 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  My question Peggy, is whether you really need the dough that badly versus the pleasure of seeing your work interpreted by another artist, say side-by-side with a photograph of your original work and a short bio sketch. I've done this before for non-commercial artists and just give them a release and request a buck for the favor.

OTOH if it's to paint a photograph for a publication, say a magazine or a book, that's a whole different story with a different set of fees and rules.
Take it light.
Mark


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11/9/2008 11:12:09 AM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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Sharon 's Gallery
  Peggy, I had a lady email me asking for permission to paint an older finalist I have and she explained why she wanted to paint it. I told her she was welcome to use it as long as she wasn't planning on mass producing prints for sale. She assured me she wasn't and I gave permission. It's not a big deal to me but I can see why some would rather not give permission.


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11/9/2008 2:17:36 PM

 

BetterPhoto Member
  Hi Alan,Mark & Sharon,
Thank you all for your comments.I understand what you all mean.I've never sold a photo to be painted before & I was just interested to know others views.
I like Mark's idea of a picture along with a bio or maybe even a business card attached to the back.
This is also a good way to get better known.
Thanks again for all your views. They are very much appreciated.
Peggy


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11/9/2008 4:06:48 PM

 
Ken Smith
BetterPhoto Member Since: 6/11/2005
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Ken's Gallery
  The same thing happened to me...a lady was interested in one of my barn shots...I exchanged a few e-mails and trusted my instincts...I left her have the soft-copy...about one month later she sent me a huge painting from my photo, which I have hanging on my wall.


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11/9/2008 6:44:16 PM

 
Carlton Ward
BetterPhoto Member Since: 12/13/2005
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Carlton's Gallery
carltonwardphoto.com
 
 
  clone_of_tulip_006b
clone_of_tulip_006b
I darkened this and made Mt. Hood bigger and covered some of the distractions (like the white barn & poles) in photoshop before using a combination of impressionist & flemish rub brushes.
© Carlton Ward
carltonwardphoto.com
Canon EOS 20D Digi...
 
 
And one more thing Peggy,
If you ever wanted to make a painting yourself, there is a fun program called Corel Painter and used with a Wacom tablet, it allows you to select a brush type & style and you can easily turn one of your photos into a Van Gogh or Monet...
The program & tablet are not cheap but they are a lot of fun.
Carlton


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11/10/2008 12:17:04 AM

 
Denny E. Barnes
BetterPhoto Member Since: 1/19/2008
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Denny's Gallery
  I might catch some flack for this but photography and painting go by different rules when it comes to copying. I have oil and acrylic painted for about 50 years and in the painting world permission is not required for someone to copy someone else's work as long as they indicate it is a copy and give the original due credit. Technically, a painting of a photograph is an original interpretation and not a "copy" per se (i.e. it's not like a photo copy) but any artist worth his salt always gives credit to the person or painting he's copying. As a courtesy, good artists always ask permission if they know the source they're copying, but it isn't mandatory.
I have never sold my paintings for commercial or publication (I've given them away to family and friends) so there may be a different set of rules and compensation due under that circumstance.


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11/10/2008 12:20:14 AM

 

BetterPhoto Member
  Hi Denny,
I did not know this.So anyone can paint a person's photo as long as the person gives permission.
I have no qualms about giving permission as long as they acknowledge my work. Even is they put my name as Peggy Bennett photo with theirs signed to it.
Thanks for the input.
Peggy


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11/10/2008 5:00:36 AM

 

BetterPhoto Member
  Hi Ken & Carlton,
That was awful nice of that person to give you a painting of your photo.
Thanks for the info on the Corel Program but I'm not good at those programs. Sounds interesting though.
I think I would much rather have a real painting just the same. It's amazing what you can do on computers now though.
Thanks to all of you for your input.
Peggy


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11/10/2008 5:06:14 AM

 
Denny E. Barnes
BetterPhoto Member Since: 1/19/2008
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Denny's Gallery
  Good morning Peggy
The common practice for artist I know and Oil Painting books and TV shows is to say it's a "copy of an original work by _____",and date of the original if known in place of a signature on the front of the painting. Some will sign under this on the front but most put their artist info and any additional info from the original on the back. This is what I do, on the back.
Denny


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11/10/2008 7:47:35 AM

 

BetterPhoto Member
  Hi Denny,
OK,thanks for that info. This is good to know.I'll go by the guidelines you all suggested.
Peggy


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11/10/2008 8:21:31 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Actually Denny, I don't think that's the case at all for a number of reasons, most of which are found in Title 17 U.S. Code and covered in great detail at http://www.copyright.gov.

The practice you mentioned above, giving artist credit and saying it's a copy of original work is based on a release signed by the artist.
A duplication is a duplication is a duplication. That's pretty straightforward. Unauthorized duplication is just that and an infringement without permission of the original artist notwithstanding the medium it's done in, again insofar as I'm aware.

If for example, you make a photograph of a particular scene and that scene is duplicated by a blanket manufactuer as a pattern in a blanket, that might be construed as one type of infringement depending on a lot of variables left to a trier of fact. But is it actionalable for infringement? Sure it is. Would the defendant prevail? That turns on the specific facts.

This is not a good forum to get specific legal advice and so I would suggest to anyone duplicating artwork without permission of the original artist, be it in a photo or a painting, or whatever, that they buy some time of a lawyer specializing in intellectual property in their neighborhood and get a legal opinion that they can rely on as a defense at trial. Obtaining a release is fairly straightforward. Not obtaining one is a roll of the dice and implies not getting caught in the unauthorized duplication / reproduction process.
Seewhatimeaneh?
Take it light ;>)
Mark


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11/10/2008 10:47:05 AM

 
Denny E. Barnes
BetterPhoto Member Since: 1/19/2008
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Denny's Gallery
  Mark, I completely agree with you when you are talking about duplication for commercial or public use but take your example of the blanket. I can manufacture blankets from a photograph all day long if it's for my personal use without anybody's permission. It's my understanding copy right laws are to protect the original from being copied and sold or use publicly without permission. It's also my understanding that painting, music, movies etc. for personal use falls under Title 17, Chapter 13 (1309-G). If I remember correctly, I read this has been tested. Sorry, I didn't make myself clear that I was talking about one's personal use and I definitely was not trying to give legal advice, just what is in practice.
Ispeaknomore
Denny


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11/10/2008 6:06:12 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Actually Denny, you're incorrect. While 17 U.S.C. Sec. 1309 pertains to some types of infringement, subsection (g) specifically applies to copying for educational purposes and states:

"(g) Reproduction for Teaching or Analysis. - It is not an infringement of the exclusive rights of a design owner for a person to reproduce the design in a useful article or in any other form solely for the purpose of teaching,analyzing, or evaluating the appearance, concepts, or techniques embodied in the design, or the function of the useful article embodying the design."

Thus, section (g) is inapposite to the situation Peggy posed initially. (g) does not grant the public or anyone else for that matter, a license to duplicate someone elses design work for personal use unless specifically for the purposes described above. Textbooks, for example, sometimes specifically allow limited photo copying for educational purposes as in publishing articles on a subject and quoting that copyrighted material as a reference source, as do decisional aspects of legal publications, like court decisions published by Westlaw Publishing.

OTOH, the statutory language set out in 1309)e) applies specifically to the design issue in our hypothetical above and also, by the express language of the statute itself, does NOT apply to pictures or photographs. Section 1309(e), as amended, states:

(e) Infringing Article Defined. - As used in this section, an "infringing article" is any article the design of which has been copied from a design protected under this chapter, without the consent of the owner of the protected design. An infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium. A design shall not be deemed to have been copied from a protected design if it is original and not substantially similar in appearance to a protected design."

Rather than go into a lengthy discussion of copyright law, why don't we leave it at this: Peggy's situation isn't a fair use, production of a derivative work, and not covered under the provisions of Sec. 1309. Rather I suggest anyone interested in this read Circular #40 and 40(a) covering visual arts works under U.S. Copyright law, what's protected and prohibited, and then go see a lawyer who does intellectual property. As you might guess, it can be a pretty complicated area of law.

Take it light ;>)
Mark



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11/10/2008 7:33:34 PM

 
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