Using someone else’s photograph as a source image for a painting

[Richard P]

Hi all,

I am a hobbyist painter and have approached a photographer who considers himself as a hobbyist photographer to see if he would let me use one of his photos as a source for a painting and do a percentage split of any sale.

He seems happy to do so, but I don’t think either of us have any idea about what kind of percentage split is the norm.

I want to be fair here and do the right thing.. is there any standard industry accepted kind of split, or it is really just up to the individuals involved?

Thank you for your help,
Richard

[Yorky Administrator Ormskirk]

I wouldn’t bother, there are plenty of free references available here in the Reference Image Library and on the many PD photo sites.

Doug

We must leave our mark on this world

[artbymdp]

You are potentially making this too complicated. If you want to pay him to use the photo just pay what you think is fair. Be sure the photographer releases (in a signed agreement by both parties) any rights to the painting but he retains rights to the photo. Just wondering, under your agreement, if you create a painting from his photo and because of your painting someone buys his photo but not your painting do you get a portion of his sale. What if your painting is licensed and profits are made from sales to third parties, are you splitting profits forever? See why your way is complicated. Maybe not as complicated as my post but it is complicated. In short if he is initiating the offer I would decline.

[Richard P]

Thank you both for your replies.

Yorky: This is a particular image I would like to paint. I am aware of PD photo sites and will use them for other purposes

artbymdp: I’m not really concerned about the case where someone buys his photo but not the painting. This is just for a possible one off sale with no other licencing beyond that.

I’m happy to pay what I think is fair, but I was trying to find out if there was any kind of standard price for these kind of arrangements.

[contumacious]

I have used both a flat fee or a percentage of the net but my contract states that the fee is paid only if the painting sells. That way I don’t have a bunch of money tied up in something that doesn’t sell.

As for the amounts, you would have to decide what it is worth to you. In the past I have done either a small flat fee of $5 to $15 or 10% of the net paid to the photographer but ONLY if it sells. So, 10% of the amount after deducting commissions, fees and materials. I have never paid up front for an image. Interestingly when I first contacted a photographer on a few particularly interesting images that I really did want to paint, they wanted $350 up front per image to use their photo as a reference. This was the amount that they had set so that when someone stole one of their images they had an amount to reference as damages if they chose to go after them.

They were somewhat taken aback when I contacted them. They were used to artists just blatantly ripping them off in the past. After some discussion we agreed on 10% of the net proceeds, only after the painting sold which ended up being about $25 / painting for the photographer. All of the paintings did sell, though it took over a year. I don’t think they really expected to ever hear from me again even if the paintings did sell so the payment likely came as a pleasant surprise.

Whatever you end up doing, get it in writing and make it crystal clear that the photographer has absolutely NO rights tied to the PAINTING. The painting becomes your own work and you own all copyrights. The payment is all they are entitled too no matter what happens with the painting. You should also use a contract when you have permission but don’t pay someone for the right to use their photo as a reference so there is no question that the photographer is giving you ALL rights to use the photo as a reference and the finished painting is 100% yours and they cannot lay copyright claim to the painting in any way down the road.

[Yorky Administrator Ormskirk]

I have contacted several photographers for permission and they have given it freely. I usually offer to send them a copy of my painting.

Doug

We must leave our mark on this world

[Harold Roth]

This is really helpful –thank you!

https://www.haroldroth.com/
https://www.instagram.com/haroldrothart
https://www.facebook.com/haroldrothartist

[Richard P]

I agree. Really helpful, thank you. Would you happen to have a template of the agreement you used that you would be happy to share with me?

[artbymdp]

Whatever you end up doing, get it in writing and make it crystal clear that the photographer has absolutely NO rights tied to the PAINTING. .

In fairness to the photographer it should also be clear in writing that the photographer retains rights to the PHOTOGRAPH. This may seem confusing but essentially the PAINTING and the PHOTOGRAPH are separate creative works and are protected equally by copyright. By obtaining written permission to use the photograph as a reference for a painting, you are not buying or licensing rights to the photograph. Besides being a good faith gesture to a fellow artist, you are simply offsetting any future dispute should a conflict arise. To expand on the thought and throw a wrench in for discussion, you need to be aware that the photograph used does not violate someone else’s copyright.You should have a respective disclaimer/waiver in your agreement with the photographer.

[Author]

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