WetCanvas

WetCanvas (http://www.wetcanvas.com/forums/index.php)
-   Legal Corner (http://www.wetcanvas.com/forums/forumdisplay.php?f=79)
-   -   Celebrity Portraites Question (http://www.wetcanvas.com/forums/showthread.php?t=48864)

edith 07-05-2002 04:59 PM

Celebrity Portraites Question
 
Hi everyone,
I have been browsing the net and came across several professional artists who display celebrity portraits for sale.

While they are very well done in a lot of cases no way can they claim to work from their own photographs

My question then is this; how can they display their work for sale, when even to display a piece of work copied from someone else's photographs or other materials - and not acknowledging the source - is a copyright infringement? Isn't it?

Or do i have it wrong? I have seen celeb pics on wc and have indeed displayed one i did of Elvis myself so am i in copyright infringement too?

How does one protect themselves from breeching copyright law if they wish to draw celebrity drawings and display them? Or can they not?

I am told that some people get photocopies from library books, magazines, film books, video shops, postcards etcetera and then copy them and sell them. In fact this practise is displayed on the net so how do they do it? Are they taking a huge risk?

This question may have been answered somewhere else but i would be pleased to hear any and all comments legally based if possible.
Many thanks for reading this. Take care and see you soon.

Chuck Levitin 07-05-2002 08:52 PM

Re: Celebrity Portraites Question
 
Quote:

Originally posted by edith
My question then is this; how can they display their work for sale, when even to display a piece of work copied from someone else's photographs or other materials - and not acknowledging the source - is a copyright infringement? Isn't it?.

I see you are from England and I am not familiar with UK copyright laws. However, in the U.S., if you take a photograph of a famous person, you only own the copyright on your photograph...you do not own the rights to an image of the famous person. You cannot just make a photographic copy of the photo for commercial use without the copyright holder's permission. However, you can certainly use the photo as a reference for a painting in another medium without the photographer's consent.

In the U.S. there is another issue, as famous people have a "right to publicity". That is a right to exploit their image for commercial purposes.

edith 07-05-2002 08:58 PM

thanks for the reply.
so the way i read it is that i can make a drawing/painting from a photograph to sell or keep without photographers permission. is that correct? many thanks.

edenart 05-01-2003 04:26 PM

Is that true? I'm struggling with this same question! I wanted to do some portraits of musicians (in my own style not just a realistic copy of a photo). So, can I paint from a photo of Madonna and not worry about the original photographer's copyright of the image? Does it matter if the subject is living or dead? I've thought of doing some artists. David Hockney, Andy Warhol... Hmmm? I wish this wasn't so confusing. I don't want to do anything to violate any copyrights, but I do a lot of portraits and thought it might be fun to throw some celebs into the mix. Any help is appreciated!

Eden

mel-ink 05-01-2003 05:16 PM

A general rule of thumb I use for copyright is: use any photographs for reference you want, but you better make darn sure you can't tell which photographs you've used. Photographs are protected by copyright the same way artwork is, because photographs ARE artwork, too. You can draw a portrait of a famous person from photograph for learning purposes, but you cannot publish or sell it.

edenart 05-01-2003 05:35 PM

If you can't sell or publish paintings of famous people, then what's the deal with artists like Elizabeth Peyton who paints David Hockney all the time. She's famous now, but surely when she began, she didn't have his permission. And she definitely sells those works.

edenart 05-01-2003 06:24 PM

Okay. I just found an article which gave me the answer I'm looking for. Photographs may be used as source material if your painting transforms the final image so that the source photograph is no longer recognizable in a side-by-side comparison. And paintings may be created of famous people if the painting itself has artistic merits that go beyond a mere realistic representation of the person depicted. That's why Warhol's paintings are protected, but a realism portrait of Marilyn Monroe might not be.

The goal of the courts, it seems is to determine whether the artwork has a goal or artistic message apart from a mere representation of a certain celebrity. If the art is making a social commentary or is depicted in a non-realistic style then it is apparently protected. If it's just a painting of a realistic image of a celebrity, then it's possibly not protected because the courts may see the art as merely trying to capitalize on the celebrity of a certain individual without adding anything to the work.

Looks like portraits in my own "pop" style would be fine as long as I make sure they don't look just like a photo, which they don't because that's not what I do!

bjasmine 05-05-2003 02:37 AM

Celebrity portraits
 
"IANAL" (I am not a lawyer) ... but ... I am working on some celebrity portraits and I have studied the issue a lot over a couple years. There are numerous different laws that apply - copyright, trademark, privacy, and right of publicity - and the they differ from country to country and even state to state. Be VERY careful if you live in California. It does not matter if the celebrity is living or dead. Their estate has the right to their image.

Now as I understand it - you can do a painting for your own use, even for a "fan site" on the Internet without permission from the celebrity. I am not sure about for use in a portfolio or samples you mail to prospective clients (I am still working on the legal issues surrounding my own) - however I recently spoke to the lawyer for a famous (late) celebrity, and he said he'd have no problem with that. What he'd have a problem with and others would not - is impossible to say. I cannot find any case law on that.

See: http://www.gseis.ucla.edu/iclp/manship1.htm (fan sites)

As I understand the law, you may sell portraits and cartoons to magazines, for editorial illustrations, without permissions (though it may still be recommended to get those permissions if you can - but that is the magazine's responsibility, not yours - I would write that responsibility into my contracts too).

You DO need permission from the original photographer to do so, however. You may "get away" without getting that permission - by making the painting so different the photographer does not recognize their work. But there are also archives of portraits available where you can purchase such images (Associated Press Etc). Paparazzi will sell licenses to artists to use their photos. I would not assume all these other artists did not get permissions just because they don't credit photographers. That may well be the case - but do you want to take the risk? I know of one photographer getting a significant settlement when one of his photos was used without permission.

What you cannot do - under any circumstances is a poster, calendar, card, t-shirt etc with the image of a celebrity without their permission. You cannot use it in advertising (not even as parody).

These are all generalizations of course. There are many people flouting the law and getting away with it. I don't recommend that.

geckonia 05-22-2003 02:34 PM

Eden and bjasmine have the right idea here. I live in California where the laws are tight and have done a few realistic celeb portraits. The first thing I do is ask the photographer for permission. Then I ask the Estate of the Celeb for permission to display the work. If they approve it, I usually work out some sort of royalty for them. Their policy is fair I think. I get to sell the original and keep all the cash, but they get 10-15% of any print sales, etc. They like the idea of artists creating images of them! They even told me if I gave them a jpeg for their site they would wave the royalty fees.

Chuck Levitin 05-23-2003 12:07 AM

Well, you guys are getting closer to the truth. Under California law you may paint and sell an original work of fine art of a celebrity without permission. If the person is dead, then there is a specific exclusion under California Civil Code Sec. 990 (n)(3) and Sec. 3344.1 (a)(2). If the person is alive, you may also paint an original work of fine art as long as it is not done in a manner to imply commercial endorsement of something. That's from Sec. 3344(e). As long as you only paint originals, you can do as many as you want. If you start to make prints for sale, you may run afoul of the law.

California likes artists.

Brownie 06-10-2003 03:26 PM

Marilyn?
 
Is every picture of her copyrighted, does anyone know? I'd like to do a painting of her for an auction...need to be done by Friday!!!

I am aware that the photogs own their works, but is there a time limit? I tend to realism, so one might guess the photo used as reference, though I do not do photo-realistic work. One would definitely know that it was a painting, not a photograph.

Just steer clear of the whole mess???

Or would anyone know of a web site where the photos of some famous people (who I would never be likely to meet) are NOT copyrighted?

Thanks for any help, Brownie
P.S. In Florida

mel-ink 06-10-2003 03:48 PM

Copyright is enforced for the life of the artist or photographer of the original work for their lifetime plus 75 years. All photographs of Marilyn Monroe are surely copyrighted and if you can recognize the photograph where it came from, I wouldn't do it. A lot of people violate the law anyway and a lot do not get caught, but why risk the cost and your own reputation for copying someone else's work? IMHO steer clear of the whole mess!!

Brownie 06-10-2003 07:00 PM

So, it would seem to me, even if one sketched from images on the TV, those images are also someone else's art product, so no vision is uncopyrighted, it would seem!
So sad, I'll never meet any of the stars, and yet this particular show that is coming up would lend itself to that tremendously, especially since the submitted paintings are suposed to represent a portrait group and relate to films! <sigh>
Ok, anyone have a famous movie quote that could accompany an Indian chief portrait, a cowboy portrait or a pensive, ballet type looking portrait that they'd care to share with someone who seldom goes to the movies? Brownie:rolleyes:

paintergirl 06-15-2003 10:38 AM

Excellent post and follow-up responses, I had been wondering myself about that till I stumbled upon it here. Thanks :D

ronnie56 10-05-2008 11:40 AM

Re: Celebrity Portraites Question
 
I read all this and am still wondering about Elizabeth Peyton and how she has based an entire body of work (and has gotten quite famous, and sells each painting for hundreds of thousands of dollars) on photos taken by others. She finds photos of people published in magazines like vogue and rolling stone that intrigue her, and paints her version of said photo. Are we to assume that she has gotten permission from each photographer, or is it that her work has just enough abstraction to qualify as uniquely hers even though the original image that it was based on was not hers? I too have seen photos that are incredibly beautiful and interesting -- why not just do what Elizabeth Peyton does?

ZB3 10-06-2008 09:49 PM

Re: Celebrity Portraites Question
 
This is an interesting thread. I've been dying to do a portrait of James Arness and Amanda Blake as Marshall Dillon and Miss Kitty. :) I figured the best I could do was make a semi-likeness of them in Poser and work from that, so I wouldn't have to use any photos.

Quote:

Ok, anyone have a famous movie quote that could accompany an Indian chief portrait,

There's a good one by Chief Joseph. It always makes me cry. Goes something like this...

"Hear me, my chiefs! I am tired of fighting. My heart is sick and sad. From where the sun now stands, I will fight no more, forever."

The exact words are somewhere on the 'Net, I imagine. :)

Quote:

a cowboy portrait

"Somebody needs to punch you right in the nose. But I won't. I won't. The hell I won't." :D Paraphrase of a line in a John Wayne movie. My husband's a John Wayne freak.

Smokin 10-07-2008 12:50 AM

Re: Celebrity Portraites Question
 
There are two considerations when draw celebs. The copyright of any reference you may use, and the right of publicity of the celeb.
If one chooses to use protected material/references, the same typical fair use considerations should be made. Typically a good artist can transform reference material into a new creation (transformative test). An easy example of transforming a photo of a celeb into something new would be when caricaturists et their hands on it. Another less obvious example of transforming photos into new original artwork would be what Andy Warhol did.
The second consideration is the right of publicity. There are both federal and state "right of publicity laws", so depending on where one is the details could be different. But this law essentially states you cannot use a celeb's image or likeness for commercial purposes without consent. So essentially you can’t make it seem like an actor is endorsing a product or put in some ad without permission. There are exceptions to this law like has already been mentioned.
Typically the exceptions read like this: "a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision." So essentially it's like fair use. On top of that first amendment rights always trump the right of publicity (So a cartoonist can lampoon an actor and recieve 1st amendment protection). Also in many states like California, they write in specific exceptions for artists to be able to paint a likeness in "single works of art". This is California’s written exceptions to the right of publicity:
Quote:

(n) This section shall not apply to the use of a deceased personality's name, voice, signature, photograph, or likeness, in any of the following instances:
(1) A play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement not exempt under paragraph (4).
(2) Material that is of political or newsworthy value.
(3) Single and original works of fine art.
(4) An advertisement or commercial announcement for a use permitted by paragraph (1), (2), or (3).

Some states that include similar exceptions for artists are Illinois, Nevada, Washington, Indiana, so these places its absolutely (Without question or grey area) legal to paint a celeb. (Prints however is in the grey area) Law experts believe a limited number of prints would not be any different than a single work of fine art" but there are no cases proving this.

Good article

Rusalka 10-10-2008 12:05 PM

Re: Celebrity Portraits Question
 
At Woodfield Mall in Schaumburg, IL, there's a stand with selling pencil drawings of famous movie stills and photos. They sell lots of prints of these pencil drawings. They've got Al Pacino from "Scarface", Johnny Depp in "Pirates of the Caribbean", basketball game stills, etc etc. Honestly I don't know how they get away with this for so long. They've been there for years. I've seen stands like this in other malls as well. So there's a whole cottage industry out there based on copying photos of famous people. Not only does this little business copy and sell famous people's images, but those images are the property of movie companies!

P.S. They are not officially sanctioned because there is no attribution on any of these prints or drawings. They are absolutely copies of copyrighted materials - I recognize the stills they came from.

Maybe a pencil drawing is considered "transformative" enough...

Smokin 10-11-2008 03:56 PM

Re: Celebrity Portraites Question
 
Attribution on or off a work is not an indication of legal or infringing work.

Quote:

Maybe a pencil drawing is considered "transformative" enough...
IMO, prob not. It more likely a case where it’s just not worth it to go after these small businesses or they just don’t know about it to decide to do something about it. However in the saderup case (three stooges), I believe that his charcoal drawing was found to be transformative enough to not violate copyrights (right of publicity is another story)

Depending on the state, celebs have very limited remedies even if they win. The most common is to stop the infringing use of the image. The second is for damages, but that’s always hard to prove. There was a recent right of publicity case with Andy Griffin where he lost in large part because there was no damages to speak of. Because Andy made only 5k off his name in the last half decade, it was unlikely that the use of his image did any financial harm.

Personally, I'd ask the owner or employee what was up. Usually a buisness in a malls would not risk doing anything blatantly illegal. Id be interested if there was a licence available or legal advise/exeptions that they felt applied.

Rusalka 10-14-2008 01:48 PM

Re: Celebrity Portraites Question
 
In your opinion is this is a small business? I was sitting in a little Italian deli and saw an image on the wall of the actors in "The Sopranos" lined up for a publicity shot. I walked closer and recognized the artist of the print as one I've seen in malls all over the place. I went home and looked up the name and she's selling in a lot of online print stores as well as an ebay store.

She's an excellent copyist, judge for yourself:
http://www.direct-to-business.ltd.uk/Prints-Various.htm

(just used this site as an example because it has an easy to see set of images, you can see plenty of other U.S. sites selling these if you google the artist's name)

Isn't it funny that here we are wringing our hands over the littlest copyright detail, while artists like this sell their *prints* drawn from photos all over the internet with nary a problem!

NZ_Born_Aussie 11-04-2008 11:32 AM

Re: Celebrity Portraites Question
 
I think it sucks how artists are not appreciated in America, as they are in France. In France, laws are in place to protect the artist. It's not right that a bunch of faceless corporations are holding back our creativity. I wonder if there's a way we can band together and possibly help change the laws here? Like lobbying for it? What a filibuster session that would make! :)

It's a thought... :)

Mr Leal 11-06-2008 06:09 PM

Re: Celebrity Portraites Question
 
I think this depends on whether you have a direct copy of a photograph or not.

So if you take a photo, and reproduce it in a drawing, that's illegal. However if you use several photos as "inspiration" and borrow from each one to get a likeness for the person without breaking the law.

So say you want to draw Paris Hilton. You can take one photo, copy it, and hide it forever because it's as illegal as marijuana. Or you can take several, and start from scratch, borrowing an outfit from one, a pose from another, the face from another, hair from another. Bam, new work, no infringement at all.

Back in the day when painters would make portraits of important figures they would have a stand in for the body, then they would get the important person(like Napoleon or somesuch), to sit for a short time to just do the face. Essentially you're using this type of practice, using reference photos.

namjagee 11-07-2008 05:37 PM

Re: Celebrity Portraites Question
 
You know it's a funny thing that people mention all these things. Of course sometimes you can change the pose of person or maybe even the facial expression, but how do you change someone if your doing photo realism? Your change certain aspects of feature of the person so it doesn't look like the photo and then it's not person your drawing it's someone that resembles the person. I thought the whole point was to draw the person as accuratlly as possible. If that isn't the case might as well just draw a black blob and call it "monroe" "elvis" etc..

Mark Sheeky 11-07-2008 05:55 PM

Re: Celebrity Portraites Question
 
AFAIK there are no celebrity protection laws here in the UK but also no "fair use" so it's simpler in many ways. If you want to copy a photo, seek the agency that holds the reproduction rights and say how you want to use the image. Pay the fee and they will give you a licence to reproduce it. Don't always assume the fees are unaffordable.

Mark

Mr Leal 11-07-2008 06:54 PM

Re: Celebrity Portraites Question
 
Quote:

Originally Posted by namjagee
You know it's a funny thing that people mention all these things. Of course sometimes you can change the pose of person or maybe even the facial expression, but how do you change someone if your doing photo realism? Your change certain aspects of feature of the person so it doesn't look like the photo and then it's not person your drawing it's someone that resembles the person. I thought the whole point was to draw the person as accuratlly as possible. If that isn't the case might as well just draw a black blob and call it "monroe" "elvis" etc..


You can have photorealism without having to copy photographs. They did it for hundreds of years before there were cameras.

Smokin 11-07-2008 09:09 PM

Re: Celebrity Portraites Question
 
Quote:

Originally Posted by namjagee
You know it's a funny thing that people mention all these things. Of course sometimes you can change the pose of person or maybe even the facial expression, but how do you change someone if your doing photo realism? Your change certain aspects of feature of the person so it doesn't look like the photo and then it's not person your drawing it's someone that resembles the person. I thought the whole point was to draw the person as accuratlly as possible. If that isn't the case might as well just draw a black blob and call it "monroe" "elvis" etc..


Well, in actuality, here in the US ,a person's likeness is considered raw material that's not protected via a copyright. This truth makes it harder to figure whats protected and whats not with respect to photos. What's not is the raw material, but rather how this material is photographed.

http://findarticles.com/p/articles/m...29/ai_87207299
Quote:


In California in 2001, an artist created a charcoal drawing of the Three Stooges and sold them as lithographs and on T-shirts. The likenesses of the Three Stooges were extremely realistic. The owner of the rights to the Three Stooges' likeness sued under California law, which prevents the unauthorized use of the deceased person's likeness "on or in products, merchandise, goods or for the purposes of advertising, selling or soliciting purchasers of products, merchandise, goods or services." The artist argued that the statute did not apply since the lithographs and T-shirts were not an endorsement or sponsorship of a product. The artist also made First Amendment claims. The court found the claims had merit but did not agree with the artist. The court adopted a version of the copyright law's fair use test and found that the image was not sufficiently transformative to enjoy the First Amendment protection based on a fair use analysis.
What is important for artists about this case is that the court carved out an important exception to the right of publicity for art works. It held that if the celebrities' likeness is just "raw material" for an original art work and it is the artistic expression that is the dominant attribute of the art work, then the artist's First Amendment rights will trump the celebrities' right of publicity.

Take a look at this photoreal image.
http://forums.cgsociety.org/showthre...f=121&t=691263

No boubt that photos were used to create this likness, but this is an example of not the photo being copied, but rather the raw material IN the photo being copied. Gosh, hope that made sense.

ucfsirishprincess 01-29-2009 07:02 PM

Re: Celebrity Portraites Question
 
I've been wondering about this myself...I'm starting a pencil portrait site and I have done a few celebrity portraits to add to the gallery in addition to commissioned work. The celebrity portraits on my site are not going to be sold...they're just for the sake of showing a potential client that I can capture a likeness using an image of someone they know and recognize. I'm wondering if I can run into problems with this even though I'm not selling these works?

mel-ink 01-29-2009 11:32 PM

Re: Celebrity Portraites Question
 
The photographer may have an issue with your drawings...a photograph is also protected by copyright law as art. I would suggest contacting the photographer who took the picture you drew from and obtain permission just to cover the bases.

DJFan 01-30-2009 07:59 AM

Re: Celebrity Portraites Question
 
Also consider that some celebrities trademark their image so they could take offense and legally come after you.

lpb 02-05-2009 01:21 PM

Re: Celebrity Portraites Question
 
Playing devils advocate here...turn the tables for a minute, to help clarify the situation:
Quote:

I am aware that the photogs own their works, but is there a time limit?
How long do you as an artist own your work? Why should it be different for a photographer?

Regarding modifying the photo...
What if a photographer took a photo of your art, then via darkroom or digital manipulation, made many changes to it, color, values, even distorting the image or combining it with others? Do you think this would be ok?

mel-ink 02-05-2009 01:48 PM

Re: Celebrity Portraites Question
 
I agree - a photo is just as much a work of art as a painting...just using different tools.

I think that a work is copyrighted for the life of the artist plus 75 years, and then the descendants of the artist have the option to renew a copyright at that time as well.

If I could recognize my artwork in someone else's digital artwork, I don't think it is ok.

Copyright is important to all of us and following the rules will help ensure protection and creation of original ideas. Respecting each other's rights is all of our responsibility.


All times are GMT -4. The time now is 02:48 AM.


© 2014 F+W All rights reserved.