Is a painting of a photograph a violation of rights?

I have a photographer friend. I have a neighbor. My neighbor has asked an artist to duplicate my friend's photograph by painting it as a mural on her wall. I like both these people. It seems to me that the photographer would hold all reproduction rights regardless as to whether it was in paint or some other medium. Am I correct?

My neighbor is also friend's with the photographer. I don't think the neighbor is trying to go behind the photographer's back. I think she has not thought this through. I am more not happy with the painter for saying he would do the mural without asking if permission had been granted - even if he modifies it a bit. Of course this depends upon whether the photographer held all rights - why wouldn't he? Seems pretty simple and straight forward to me...but thought I would ask here anyway.

I don't know if the neighbor bought the photograph. Seems that would not matter anyway. When buying someone's print, you are buying just the print to display and no other rights are given. This sounds so simple, but many folks may not understand the rights issues.

This photograph sells pretty well for my friend. My next question would be what would the appropriate payment be for rights to have a photograph painted as a mural on a dining room wall? Sorry, don't know the size of the mural but "mural" suggests something fairly large. The image he sells is 17x13ish. Would something like this even be in any of the online or paid for guides?

Thanks for your help. I am sure my photographer friend will be interested in this. At this point, I do not think he is aware of any of this. I don't want my two friends ending up like this

Troup Nightingale

IMHO painting the image using the original photograph without a specific release or license to do so is a violation of copyright law. I have had a few painters ask permission. If they ask, I usually say OK without charge, unless they are going to sell the work or make any money on it. If they are going to derive any cash flow I will grant a license to paint it, but ask for a percentage of the cash the painter derived from my work. If the painting is strictly for personal use to hang on an individual's wall I have not charged.

EDIT - The above counts even if the image is modified or only a portion of my image is used. The final painting is still a derivative work from my original.

If the painting is an obvious copy of the photograph then I'm pretty sure that yes, it is a violation of the photographer's copyright.

Guy

I really don't understand how a painting can be a direct copy of a photograph. What if a photographer saw a painting and journeyed to the same exact spot and made an image of the same scene. Would that be copyright infringement of the painter?

I think it has more to do with a violation of intellectual property in that the photograph is the photographer's unique viewpoint on a scene. By copying this unique viewpoint as a painting, copyright is being violated.
On the other hand, if you see a painting from a location and want to make your own photograph from that location, you'll be dealing with completely different conditions than those that were painted. And how would you know if the painter added or subracted from the scene as they saw fit? You'd be making a completely new work of art. It may be inspired by the painting, but it can't be a copy of the painting.
The difference here is that someone is taking an existing work of art and making a derivative of that, which is a copyright violation. It's analogous to photographing someone's painting and then profiting from the photograph.

Yep, all the above comments cover it as far as I understand how things work. And you are so right that most people do not understand the concept of intellectual property or respect copyright law if they do understand the concept. Good on you for looking out for your friends!

What I found by Googling photography copyright law was a term that I hadn't remembered. The photograph is your work and you hold the copyright to it. The painting would be a derivative work of a copyrighted work. As such, the painter would need permission to do so. I know photographers who sell the right to paint their photographs to painters, so this is common. In some of the other threads, there are links to people specializing in law for photographers. You might try that.

Good luck

Thank you all for replying! Actually, I was surprised to see the question plus answers as the NPN Server gave me "Server Error" the two times I tried to send it. But it made it through anyway.

Great advice from everyone. I will talk to the neighbor first and gently prod her in the right direction and see how she takes it. I think she will be surprised and then want to do the right thing and talk to our mutual photographer friend about it. I think he will be appreciative that they like the photo enough to have it painted as a mural. And the best case would be that the neighbor buys the photograph, too!

Thanks again everyone

Troup

Troup,

While I have absolutely NO expertise in the law regarding this kind of thing,.. what I feel has been overlooked here is that the "copying" of this image is in a private residence, not for public display or personal promotion or profit. I would guess that while it is almost certainly a "Technical" violation of copyright, similar to taping a song off the radio or album to listen to in your car or home, it isn't actionable! (I fully realize the music industry would "like" to stop that kind of thing, but it isn't worth the time, money & effort, not to mention the bad P.R.)

With no intent to defraud the photographer or profit from his/her work, it doesn't seem like it's worth stirring up a pontential hornets nest among friends. It would be a much different proposition if the mural were on an outside wall where it was open to public view or access, but stricktly for the personal enjoyment of the homeowner,.. "I" would most likely just be flattered they liked my image enough to want to live with it in such a prominant fashion day to day.

Just my opinion.

(Now if they were making money off of it,.. I'd feel betrayed, and would want to legally drive them into the ground like a tent stake!!! )

I get occasional requests from people who want to copy my photos as paintings or even other works. I always ask if it is for strictly personal use or if there is any intent to sell the results. If it is personal I usually grant permission; if it is commercial in any form I ask for appropriate compensation.

But do you really want to insert yourself between two friends over this? Surely the photographer knows his/her rights and knows about the mural. What do you gain from this intervention? What do you risk by doing so?

Actually, Craig, taping a song off of the radio or taping something on TV is completely and totally legal, as long as it's for personal use. And I believe copying CDs and software is the same way (both of which have been challenged in court, and the results supported the consumer). You can't attempt to make money off of any of these, though. (As an aside, DVDs are slightly different - it's legal to copy them, but NOT legal to bypass the copy protection. Some current lawsuits are still challenging this. It's kind of a strange circumstance.)

I agree with you on the painting, though. If it's purely for someone's use in the home, and isn't reproduced or sold beyond that, I'd be tempted to just let them do it (as Ed mentioned he does). If this becomes frequent enough to be some kind of real business opportunity, well then that's different.

Thanks again for the new advice. The reason I might interject myself is because at this point, I know the photographer does not know about this. And since he is a friend of the neighbor, he will be invited to their house at some point. I don't want him to be taken by total surprise and get annoyed. And since I am a neighbor, he would know that I probably knew about it. Then he could get miffed at me, too! If the neighbor learns she should pay him something, then maybe she could have that for him the day he sees "his" work on her wall. Then, we all remain friends. Good points being made that it is a mural in a private residence and not for "public" display. I am still miffed that the painter did not broach this subject to the neighbor first! As an artist, he should have known to at least check it out or mention it to her.

Thanks again everyone.
Troup

Troup,
I would think very long before making any comment to the photgrapher. Stirring up a hornets nest is a pretty good description. The best course for you is to gently talk to the neighbor and let her/him talk to the photographer. If they don't then it becomes their problem. If the photograper asks, you can say you spoke with them. If you talk to the neighbor they may say they have already asked permission or didn't realize that they should. You will avoid a lot of hurt and possibly embarrisment. But that is just MHO.

Mary

Thanks Mary! That's sounds like a very good approach to this situation. Super!
Troup

I am curious about the legal issue. Surprisingly, at least to me, I had a friend bring me a release from his Mother whose art class wanted to use one of my images to do paintings from. I said something like "You got to be kidding me. They're welcome to paint the image but I can't imagine they need a release." He told me that the instructor of the class said it was legally required. I signed the release but still wonder if it's required. I think the issue comes down to the definition of "reproduction" or "copy" and I don't think painting qualifies. If anyone knows for sure, I would be interested in knowing.

Pat

Pat - If you do some googling, I'm pretty certain you'll see plenty of pages about how creating a painting from a photo without permission is, in fact, a violation of the photographer's copyright. (Although you tend to get lots of copyright links dealing with painting trademarks and logos, rather than photos.) Here're a couple examples :

About.com Painting

And this one on NatureScapes, where Carolyn Wright, who runs PhotoAttorney.com, responds.

You'll also see some cases where part of a painting was used, and no infringement was found, since it wasn't a derivative work infringing on the ideas of the photo.

My expertise is with another medium and out of date (I'm retired), but my strong sense is that the legal issue here arises from the painter's being paid to make a copy of the photograph. "Fair use" (it seems to me) applies to my painting a mural of someone else's photograph on my dining-room wall. I don't think it matters at all that the mural will not be publicly displayed because the person who lives in the home is in practice comissioning a pirated version of someone else's intellectual property. I fully agree that the painter should have expressed grave reservations from the beginning.

Thanks Rosemary for adding more commentary. You make a nice point about "you" painting someone else's work for your "own" wall. Interesting legal issues have been brought up by everyone. This situation is indeed quite complex! Thanks again to all who have made this a very interesting thread!

Troup Nightingale