Painting someone from a photograph: two rights on one image

Two rights, one image

Most arguments about painting from photographs go wrong in the first sentence, because people talk about one right when there are two.

They can sit with two different people, and in this series they usually do. The woman published the picture. Somebody else pressed the shutter. Both of them have something to say about a painting made from it, and they can say different things.

Where the exact lines fall depends on the country you are standing in, on whether the use is commercial, and on facts that differ per photograph. That is why this page describes the situation rather than resolving it.

Who owns the photograph?

Whoever made it. Not whoever posted it, and not whoever is in it.

That surprises people, because on a phone the two look identical: an account, a picture, a name underneath. But an account is a place a photograph was published, not proof of who took it. A professional shoot, a friend with a camera and a picture taken at arm’s length are three different situations with three different answers, and the photograph itself rarely tells you which one you are looking at.

The practical consequence for this studio is simple: the source is credited where it is known, and the credit names the photograph rather than pretending nothing came before the canvas.

Does public mean free to use?

No. Published in public is not the same as released for use, and commercial use is not covered by the fact that something was easy to find.

That distinction is the whole reason this page exists. A photograph on an open account can be looked at by anybody, and that is what it was put there for. It does not follow that it can be reused, sold, printed or built into somebody else’s product. Those are separate questions and being visible answers none of them.

The women in this series make that sharper than average, because these photographs were made and published deliberately, by the person in them. Something put out on purpose is not raw material lying around, and treating it as though it were would be the exact opposite of what this series is about.

What does “credits the source photograph” actually mean?

It means one line under every painting, in the same words each time:

Inspired by a photograph of Dana Hamm (@danahammofficial).

Here is what that line does. It names the woman, so the work is a portrait of a person rather than an anonymous body. It says the painting came from a photograph, so nobody has to guess whether a canvas was invented. And it gives anybody who wants to check something a place to start, including her.

Here is what it does not do. It is not a licence, it is not permission, and it does not settle a copyright question. A credit is an acknowledgement, not a clearance, and a studio that presents one as the other is hoping you will not notice the difference. That line and the one about writing to the women are two different promises, and the second one is in do the women know.

Is a painting a new work or a copy?

A painting is plainly not the photograph. Whether it is far enough away from it to stand on its own is a question with a legal answer somewhere and an obvious practical one here.

The practical one first. A photograph made for three seconds of somebody’s attention becomes an object worked on for weeks, at a size the photograph never had, in a medium that cannot record anything. Colours arrive that were never in the source: the blue in Natalee (Blue Light) exists because I put it there, and there was none of it anywhere near the photograph. Things get left out, and things turn up that nobody planned. What comes off the easel is a different object with a different subject.

The separate objection — not whether it is allowed but whether it is really painting — is answered in painting from a photograph: the objection, and the answer.

The legal one is not mine to give. Courts in different countries have drawn that line in different places, and they have drawn it on the facts of one picture at a time. Anybody who tells you there is a percentage, a number of changes, or a rule of thumb is repeating something they read once.

What this studio does, and what it does not claim

What is not claimed: that the arrangement is watertight, that a credit line resolves a copyright question, or that a painter who is open about his method has therefore settled it. I know what the risk is and I carry it. That is a position, not a defence, and it is the honest description of where this studio stands.

How to have something removed

The sentence is at the bottom of every page in this series, and it is meant exactly as written:

If you are the woman in the photograph, or you made the photograph, and you would rather it were not shown here: write to the studio and it comes down. No explanation needed.

There is no form and no review. That covers the photograph on her page, the page itself and the listing in the shop. A canvas that has already been sold is in somebody else’s house and beyond this studio’s reach, and saying so is better than discovering it later.

This page is not legal advice. It describes how one studio works and what it understands the questions to be. It is not an opinion on your situation, it does not tell you what the law says where you live, and it is no substitute for a lawyer. If you have a claim about a photograph or about your own likeness, take it to somebody qualified to act on it — and write to the studio, because the removal above does not depend on any of that.

Questions people ask

Is it legal to paint someone from their photograph?

There is no single yes or no. Two separate rights sit on one image: the photographer holds the copyright in the picture, and the person in it holds a right in her own likeness. Where the lines fall depends on the country and on the facts of that photograph. This page describes the situation and is not legal advice.

Who owns the photograph a painting came from?

Whoever made it, which is not necessarily the person who posted it or the person in it. An account is a place a photograph was published, not proof of who took it. The source is credited here where it is known.

What does it mean that a painting credits the source photograph?

It means one line under the work naming the woman and saying the painting came from a photograph of her. It is an acknowledgement, not a licence and not permission, and it does not settle a copyright question.

Can a painting or a photograph be removed from this site?

Yes. Write to the studio and it comes down, with no explanation needed. That covers the photograph, the page and the listing. A canvas already sold is in somebody else's house and beyond the studio's reach.