Copyright/ownership of photo of commissioned drawing

[PattyC]

I was asked to do a house portrait for a friend who provided me with photos to work from. The drawing is done and has been given to her. But I took several high quality photos of the drawing before giving it to her, hoping I might get some additional print requests for the portrait by other family members who grew up in the house. The original was really of gift from me to my dear friend. But if family wanted to, could she ask for that photograph and reproduce as many prints as she wants for them? Do I own the photograph of the drawing or does she because she commissioned the original drawing? And could I, for example, use that image again for my own purposes, or is she the owner of the image because is based on photos given to me by her. She and I have not had this discussion, but being new to accepting assignments, gifted or commissioned, I am beginning to wonder about my rights after a commission is completed.

I welcome your thoughts and comments as well as sound legal information on the situation.

Thanks,

PattyC

[joolee]

Hi Patty. Others with more knowledge and experience will be giving you their views, but my understanding is that you own the copyright, unless you have specifically transferred it to someone else. So, you can use that image for your own purposes and you are the only one who has the right to reproduce the image. However, I know from my own experience that others do not understand this unless you tell them. So, I would imagine that your friend has taken copies of the painting and has forwarded it to everyone who is interested.

Jools

[pacificNW]

I agree. It is my understanding clients often incorrectly assume that when they purchase or commission an original work, they then own the copyright and can do what they like with the work and the image. Not true. They may have had the idea for the work, even, but they did not create the original final image.

The copyright and photographs of the final work stays with the artist. You own the image so you own the photographs. The artist retains copyright of the image when a work goes elsewhere and usually it's a good idea to educate the client about this up front to avoid unfortunate misunderstandings.

In fact, some artists will even put in their contracts that they can request to borrow the work back for use in future exhibits and that they would like to be notified if the painting is resold so that they can keep track of it.

[roxyart]

Isn't this complicated by the fact that the painting wasn't based on the artist's photographs, but instead, photographs taken by the client?

[pacificNW]

Interesting question.

I just did a painting of a mountain with permission of the photographer to use his image as a reference. He owns the copyright of the image in the photograph, but he does not own the copyright to the image of the resulting painting that I did. That is why we request permission in the first place, usually in writing.

I would assume that if photos of the house were provided by the client then that is an act of permission by them for the artist to use the photos as reference and therefore the client owns the copyright of the photos but not the finished drawings.

It may be best to clarify the permission of using client provided reference photos in the future as part of a written contract, or even a simple email, or to take your own.

[PattyC]

Yes, I thought this would be an interesting and complex issue. Joolee, my friend does not have copies of the high quality image. This is the reason I ask about this. I do not plan to give her that if I am the owner of that photo. I'm not concerned about this becoming a friend issue, but I just want to understand what I can and cannot do. I welcome more comments is folks have any.

[Horsa]

My understanding is that you own the. Copyright to the drawing, and also to your photographs of the drawing. Your client owns the copyright to the reference photos you used.

Your drawing, and by extension your photographs of the drawing are "derivative works" from the original photographs. You hold the copyright of the "new authorship" portion of the works.

You would possibly need to obtain permission from the original photographer if you wanted to re-draw the house as part of another new work. The US Government Copyright office has a number of free circulars available online concerning copyright of derivative works etc.

You and not your friend have the right to reproduce and sell copies of the drawing. And yes, I checked the information with the copyright office website. I think I understood it properly.

[PattyC]

Very helpful. Thanks. I will go to the website to review more closely.

[Greg Long]

Patty, if the original was drawn with the permission of the photographs owner, you then own the copyright of the drawing. You are entitled to make prints of it, but she is not, unless by permission from you.

[JoyJoyJoy]

Patty...

You own full copyrights on the images and use of the images of your original drawing unless you have said otherwise IN WRITING. This is an ongoing misunderstanding when customers buy art or, especially, when they order a commission piece. Of course, what are you going to do if the customer is a friend... sue them?

Joy

[Munch]

I believe the original post concerned a gift (i.e., the drawing wasn't paid for by the commissioner/friend).

I was recently asked to quote a price for a commission painting I would make of a photo taken by the organization wishing to commission the painting. The image would be of their scenery. If this comes through, and there is no specific reference to it in the agreement, who would own the copyrights? I know that normally the artist does, except when its "work for hire". My question is: Is a commissioned painting considered work for hire?

If it’s not, then I'm assuming the above discussion applies and even though the organization took the photo (for me to paint from) I would still own the copyright.

I am trying to figure this out so that I can quote them the right price. I would really appreciate your input.

Thanks!

[Greg Long]

Munch, My opinion is that it needs to be set out in a contract. The commission could be deemed work-for-hire, however if the contract states that copyright of the painting remains with the artist you know where you stand.
Incidently, I never work on commissions without a contract.

[Munch]

Thanks Greg! I expect there will be a contract it’s just that I haven't yet seen it and they are asking for a price quote, or a price range.

I have done commissions before and have assumed they were considered 'work for hire'. Therefore, I have not attempted to sell prints of any of them. Most (but not all) were portraits, which I don’t typically paint, and not anything I would look to sell prints of anyway.

HOWEVER, following my post, I came across this link: http://www.copyright.gov/circs/circ09.pdf
From it I understand that my commissions (and generally speaking artists' commissions) are NOT considered 'work for hire' (unless otherwise agreed to). I just feel that much richer in terms of IP rights. I was wondering if anyone had a different take on it as I'm not a lawyer.

Thanks again!

[Greg Long]

my contracts usually carry the proviso that I own the copyright and that any alterations repairs to the work should also be carried out by me (at a price). I don't however produce reproductions so that would not factor into it.

[Munch]

Thank you Greg! That's a great idea! I would not have thought about including the alterations and repairs (at a price:-) close