this is my understanding:
Generally, you CANNOT make a painting from a photo of a celebrity because the photo is copyrighted by the photographer. That’s why Shepard Fairy got in trouble for the Obama ‘Hope’ poster – he used a copyrighted photograph.

You CAN make a painting of a celebrity from a photo that you’ve taken yourself. Paparazzi’s make a living taking and selling photos of celebrities that they take without the Celebrities permission.

You CANNOT use that painting or photograph however, to use in a beer commercial etc. The celebrity retains rights of publicity. SO as long as you use your original photo/painting and do not misrepresent the context as promoting something etc. it is okay.

You can create a likeness of a celebrity and use under the same “not for publicity” restriction. THat’s how political cartoonists are able to do it, and how NY TIMEs, etc. are able to produce illustrations of celebrities without their permission to use along with their articles etc.

Now you see paintings of celebrities obviously taken from posed photographs that the painter didn’t take all the time. There is the law. And then there is what you can get away with. Also people get sued sometimes when it would appear the law is on their side – and loose.

Copyright laws only protect humanly creative works and do not apply to naturally occurring objects. A face is a naturally occurring object (I guess in Hollywood the plastic surgeon may argue otherwise) and cannot be copyrighted. However, a photograph, painting, sculpture or video of that face can be copyrighted. Celebrities, as does anyone, do have a say in how their image is used in the promotion of products, business and services which is different than copyright laws.

I see many of these pop artists such as Mr. Brainwash (Don’t laugh he’s worth 10 million dollars) Using images of models like Kate moss and other famous faces, and I’m sure those photos are not taken by the artist! so there has got to be a few photographers in knowledge of their photos being used to fetch a 50K painting profit. Possibly some of the more successful ones may have bought the photo rights, but many of these artists started out doing this kind of work from Getto studios, like Knowledge Bennett and his Obama Cowboy. I really doubt they were coming up with thousands for photo licenses.

Usually the photographer doesn’t own the copyright of the Celebrity photo. The studio does,or the agent, or the publicist, etc. THere are hundreds of such photos taken by multiple agencies and thousands of “artists” using them to make one-off paintings. It’s just not in their interest to chase down every “infringement” and take it court to win–what? If Mr. Brainwash makes a painting of Kate MOss, she’s flattered. To her it’s like winning an award (she has no legal standing to sue anyway). THe studio copyright holder isn’t going to sue Mr. Brainwash and embarrass Kate Moss in the process, get bad publicity and make (to them) chump change. It just falls into not what’s legal, but what can you get away with. Not to mention Lawyers are expensive and these cases are not slam dunks and can often go either way.

There are cases where artists get sued. Andy Warhol did, Shepard Fairy did, Jeff Koons did.. and others. But it’s actually rare. And doesn’t scare artists from doing it, because it’s often in the best interests of both the artist and the Celebrity. however put a Celebrity face on a billboard to sell X and you will get a cease and desist or worse.

Before I consider a crime I ask myself “what do I have to gain? what do I have to lose? what are the odds of getting caught?” —

And imo the best alternative. Make an original painting of a Celebrity – one that looks like the Celebrity but of no known photo taken of her/him.