Reselling copies of paintings made from photos?

[stephges]

I recently commissioned my boss to paint a picture of my dog as a Christmas present to my husband. I really like her work and she only charged me $150 for an original 18x24 painting on canvas (she could easily charge MUCH more than that)! She painted Medina (my dog) from a picture that I gave her that I took.

I found out today that she's in the process of setting up a website to sell originals and copies of her work (including copies of the painting of my dog). Are there any legal issues surrounding this since I took the original picture she based the painting off of? I'm not angry about it at all and I don't really care, I'm just curious more than anything. As far as I know all the other paintings she's done were based off of photographs, as well. The photo I gave her and the painting are shown below.

[toverman]

Well, this is another one that a lawyer should be answering. But I'll bite anyway ... because the painting is a depiction of the photo and not an exact copy, basically a new creation based on your image, I can't imagine there being any legalities to stop her.

[jeffkohn]

I believe her painting would be considered a derivative work. This is a fairly complex area of copyright law so if you were really concerned you'd probably need to talk to a lawyer. My understanding is that if the derivative work is too similar to the original, it would be a violation or the original work's copyright.

[toverman]

Jeff has a good point, but being a different medium (and with background elements removed, colors modified and paint brushes used vs. cameras) my uneducated opinion is that it's a stretch.

[jeffkohn]

Originally Posted by toverman

Jeff has a good point, but being a different medium (and with background elements removed, colors modified and paint brushes used vs. cameras) my uneducated opinion is that it's a stretch.

To play devil's advocate. What if I took the original photo, replaced the background in photoshop, and ran it through the Topaz Simplify plugin to get that painting look, and starting selling canvas inkjet prints? Still OK? I don't think it is, because the right to create derivative works is one of the rights that you as the copyright owner get.

But like I said, there are gray areas, it's not necessarily a clear-cut matter. For instance if the derivative work is considered satire, it could fall under fair use.

[johnastovall]

Based on the Richard Prince and the Marlboro photographs, I don't see you having much recourse.

Besides her painting look like paint by numbers.

[jeffkohn]

Based on the Richard Prince and the Marlboro photographs, I don't see you having much recourse.

I'd say that's a pretty poor example to go by since there was no court case. If Krantz actually owned the copyright for the original photos (he doesn't, Philip Morris does), and were to sue Prince, I think he would have a very strong case.

BTW the fact that Prince's "art" is taken seriously by anybody is truly pathetic.

[mmuhlenkamp]

I believe this painting is altered enough from the original photo to be it's own piece and no longer falls under your copyright (I am not a lawyer!). There was quite a bit of controversy over Shepard Fairey's work with the "Obama Hope" image. (Yes I'm linking to Wikipedia). I'm split on the usage whether it is right or wrong (I kind of think Fairey is an ass), but legally he was found to be using it under "fair use".

Fairey has come under criticism for appropriating others' artwork into his own while failing to provide attribution for the work used.[37][38] However, he has threatened to sue artists for the same technique. Austin, Texas graphic designer Baxter Orr did his own take on Fairey's work in a piece called Protect, with the iconic Obey Giant face covered by a SARS respiratory mask.[39] He started selling prints through his website marketed as his own work. On April 23, 2008 Orr received a signed cease-and-desist order from Fairey's attorneys, telling him to pull Protect from sale because they alleged it violated Fairey's trademark. Fairey threatened to sue, calling the designer a "parasite".[40]

In 2009, it was revealed that the HOPE poster was based on a copyrighted photograph taken in April 2006 by Mannie Garcia while on assignment for the Associated Press (AP), which wants credit and compensation for the work.[41] However, Garcia believes that he personally owns the copyright for the photo, and has said, "If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it's had."[42] Fairey has said that his use of it falls within the legal definition of fair use.[43] Lawyers for both sides were discussing an amicable agreement.[44] Fairey, however, ultimately filed a federal lawsuit against the Associated Press, seeking a declaratory judgment that his use of the AP photograph was protected by the fair use doctrine and so did not infringe their copyright.[45]

[johnastovall]

Originally Posted by jeffkohn

I'd say that's a pretty poor example to go by since there was no court case. If Krantz actually owned the copyright for the original photos (he doesn't, Philip Morris does), and were to sue Prince, I think he would have a very strong case.

BTW the fact that Prince's "art" is taken seriously by anybody is truly pathetic.

I would say selling for 325,000 is serious enough for anyone.

[mmuhlenkamp]

BTW, I think the painting is a really fun, bold, graphic interpretation of your photo. You got an excellent deal, it will be something to treasure for a long time.

[SaSha]

I would of did it in Oil and not Acrylic although 150 would have just covered supplies and you would have gotten something totally diff. but more importantly i would have not capitalized on your dog's beauty. ;)

[danchez]

she might have to worry about her logo, reminds me of the WB network. LOL

[jeffkohn]

Originally Posted by johnastovall

I would say selling for 325,000 is serious enough for anyone.

Seriously pathetic.

[stephges]

Thanks for everyone's replies! Like I said originally, I'm not interested in pursuing anything with my boss (her making copies of her painting doesn't really bother me). I was just curious - I especially don't want her getting into legal trouble down the line with someone who's not as easygoing as me! :)