Posted by Bill Maile on October 12, 2009 at 10:54 AM
OK, I've got a question I'm sure many of you have experienced. Over the few years I've been doing this I have had some requests for painters (of different levels) to use my photos to interpret through their paintings/sketches.
But recently, I've had numerous reqests for them to paint the attached image, some from people I know, others from people I don't. In the past, if I knew the person, I would just say sure go ahead. But now, I'm thinking this is rather silly of me to just hand out my images freely.
One local gallery owner even asked me about doing an exhibit where he asks 20 regional painters (approx.) to send them this photo and do their own versions of it. Then, he would have a show in his gallery with my photo and their interpretations of it Now I'm flattered of course, but...
How do I get compensated for this financially?? The gallery owner seemed miffed that I would even bring this up.
And yet I then talked to several people more experienced in dealing with this sort of thing, and they suggested charging a small flat fee for anyone wanting to paint a photo I've taken.
I guess I'm just looking for advice and any methods you folks use. Thank you very much in advance!!
Painters are REAL artists. Photographers aren't, doncha know?
We get a lot of this and inspire lots of consternation in the amateurs and some that sell their work, while getting nice trade from the actual pro painters. We charge a fee for anyone NOT selling the resulting painting. Anyone that plans to sell the painting signs an agreement to pay us half the income from the sale.
Those that object hear my favorite line: If photography is so easy, go take your own gosh darned pictures. Or words to that effect.
Posted by Bill Maile on October 12, 2009 at 11:39 AM
Yeah Hank, that old line, one of my father's faves!!
Hmmm, that's an interesting arrangement and worth considering.
How about this line I got from the gallery owner who wants the 20 artists to paint it--I said to him that I would then expect a commission from anything that is sold by them. His knee-jerk response, "really, they do all the work, and you get a commission!"
I couldn't believe he said that--but he's a REAL artist as well.
"really, they do all the work, and you get a commission!"
He could always transport everyone to the site and do a workshop on location. As an alternative, he could go there himself and take the photo for his artists to use.
I like the idea of him paying you $50 per artist for use of your photo, since this is AFTER ALL a moneymaking, attention-getting venture for his gallery. He obviously just wants a free lunch.
Nice to meet you, Mr. Lunch!
Posted by Lydia Dotto on October 12, 2009 at 1:32 PM
"How do I get compensated for this financially?? The gallery owner seemed miffed that I would even bring this up."
Ask him if he gets paid for selling paintings or does he do it for free out of the goodness of his artistic heart?
You have a right to compensation and credit for the original work from which the derivative painting/sketch was created. Any gallery owner who is worth their salt will know this. If they do not, educate them.
Also, you should have a contract written up that includes your rights to the original image, how your image may be used, and the amount of compensation and how it is to be paid.
-P
Posted by Jim Salge on October 12, 2009 at 2:07 PM
Hmmm....just curious...I know that general knowledge and curtesy has it be true, but what does copyright law say about derivitive works?
I am an artist and photographer. I paint from my own photographs, but at shows many times I have had other artist buy my note cards then after paying for them they inform me that they bought them to paint from. I have had a few come up to me and tell me that photographers should feel honored that an artist would want to paint one of their photographs. Since I know both sides of the coin, I would have no problem paying for the permission to paint from another photographers photograph. I have seen some on here that I would love to paint, but do not know how to go about negotiating a price and release. There is a lot of work in painting, but there is just as much work in photography.I think a good photographer put in a lot more hard work really, and it takes talent in both fields. I feel that the only difference is that an artist has to make the desired amount of money on that one origional painting, where as a photographer can repeatedly reprint a photograph to sell and make probably more money in the long run. Just my opinion tho.
Posted by Jim Bullard on October 12, 2009 at 2:19 PM
Artists have worked from one another's paintings, drawings, etc. for centuries. Copying is a way to learn skill (though it is frowned upon to sell such copies) and have 'interpreted' other's work as an homage, marking the result "After Rembrant" (or whomever) without permission from or compensation to the original artist. The gallery owner is probably thinking along those lines. Those practices however generally involve the work of artists long since dead.
You might point that out to him, noting in the process that you are not dead and that you too are trying to sell your work, not give it away. Maybe the condition should be that they each buy a print to work from. In any case their results should be clearly labeled as "From a photograph by Bill Maile" if they are basing their paintings on your photo.
This can be turned into a publicity and sales opportunity for you if handled right. I.E. You could require that in addition to hanging one copy of your photo, the gallery have matted prints for sale, perhaps even prints of some of you other photos in gallery rack. There is the possibility that some buyer(s) of the 'interpretations' might want a copy of the original too. You could require that your marketing materials be prominently available (business cards, postcards, brochures, etc.) at thsi show. Or how about "Yes, but you have to give me a solo show in the future". Think of it as a cooperative event to expand your audience instead of just "How much will they pay me?"
Posted by Bill Maile on October 12, 2009 at 5:15 PM
Too many excellent comments to address directly, but I get what all are saying. "They do all the work..." kind of turned my stomach... but...
Jim in the last post makes some good points as well.
Posted by bill meikle on October 12, 2009 at 5:27 PM
Personally I usual turn these "kind" offers down since I feel that my photograph is my work and I would be happy to sell prints but I don't want to have others sell paintings based on my work. I don't feel it's right that photographers photograph other people's art either e.g. statues or whatever.
As I understand 'derviative works', the rights (both intellectual and copy) belong to the creator of the original work. If someone copies any recognizable portion of an original work and calls it their own work and/or uses the work without permission and/or credit to the original artist, they are in violation.
The following is a reverse take on the situation, but I believe it illustrates the rights issue.
A few years ago, I was paid to make some large format photos of selected oil paintings done by a local artist. We discussed the 'rights' issue. The bottom line was that I could keep the transparencies for her use exclusively. I cannot print or sell any of them in whole or part. Nor did I receive any credit for the photos that appeared in a 'Western art' magazine.
I was well paid for my efforts, so I was fine with the tenets of our contract. It would have been nice if I had received credit for making the photos, but I was OK with that, as well. The bottom line here is that I really had no claim to any right on the use of the transparencies: The rights belong to the painter, in this case.
--P
Posted by Jim Bullard on October 13, 2009 at 9:06 AM
Jim,
Your work photographing an artist's paintings is not a "derivative work". What you have there is "work for hire" in which case {almost) all rights accrue to the artist who paid you to do the work. In that sense it is not unlike a photojournalist working for a newspaper on salary and under the editor's direction. The photos he/she makes are property of the newspaper, not the photographer (see http://www.copyright.gov/circs/circ09.pdf). I also do occasional work for artists and crafts people photographing their creations. I sometimes scan slides for film photographers. The product of those sessions are the exclusive property of the person I do the work for with one exception, the work becomes a part of my portfolio for showing the quality of my work to other potential clients.
A derivative work would be one in which you alter the original in some way, adding your own interpretation or elements, not simply record it or transpose it to another medium (i.e. film to digital). See http://www.copyright.gov/circs/circ14.pdf.
I have a set of photos made by my grandfather http://tinyurl.com/cwlryw which I scanned and have given copies to a couple of museums who were interested. I did copyright them which might be a tad questionable on a couple of grounds but the digital versions are my creation from glass plate negatives which are my property. In any case it is not my intent to profit from them. If a historian asks for permission to use them in a book or article it will be granted. My intent in applying the copyright is more to guarantee proper credit to grand-dad and so that I know how the photos are being used.
Jim Bullard
West Stockholm, NY, USA
http://jims-ramblings.blogspot.com/
Posted by Bill Maile on October 13, 2009 at 11:00 AM
Thank you again. I'm not sure I've come to a conclusion as to how to proceed, but I appreciate all the great input.
Were you refffering to my comments above? I may have misunderstood the definition of 'derivative'. Just curious, but wouldn't a transparency that is faithful to the original work be considered 'derivative' because the media are different? Or, does the definition apply as you stated: "A derivative work would be one in which you alter the original in some way, adding your own interpretation or elements, not simply record it or transpose it to another medium "? The circular did not appear to make this clear, which is why I ask.
Thanks,
-P
Posted by Jim Bullard on October 13, 2009 at 3:13 PM
Preston,
It is a bit vague but I've always taken derivative to mean altered or added to in some way whereas faithfully scanning or photographing a work is reproduction. I think (I'm not a lawyer) that simply reproducing in another medium does not rise to the level of being derivative. Perry Mason might dispute that.
Perhaps we are really doomed to just providing input:
Painting an exact duplicate of someone's photograph is obviously stealing their view and their vision. I have no idea what the legal implications are, but painters use photographs all the time. Sometimes, they duplicate them too closely. In those cases, I think the painters are stealing. I asked a painter about it; a relative actually. She was so proud of her work that she totally lost or ignored the importance of the photographer. The phographer showed her everything - framing, light the whole thing. I have no solution. I only know that if you "publish" a photograph it may be input for a painter who is beyond your control.
Pete D. dearly wishes he could cheer you up, but that ain't gonna happen
Hey thanks Troup! I think this and my vertical version (the first two shots of that day) are probably my best ever, especially the vertical. Everyone insists it IS a painting when at exhibits. Luckily, I had a witness to this shooting!!
Discussion
19 repliesBut recently, I've had numerous reqests for them to paint the attached image, some from people I know, others from people I don't. In the past, if I knew the person, I would just say sure go ahead. But now, I'm thinking this is rather silly of me to just hand out my images freely.
One local gallery owner even asked me about doing an exhibit where he asks 20 regional painters (approx.) to send them this photo and do their own versions of it. Then, he would have a show in his gallery with my photo and their interpretations of it Now I'm flattered of course, but...
How do I get compensated for this financially?? The gallery owner seemed miffed that I would even bring this up.
And yet I then talked to several people more experienced in dealing with this sort of thing, and they suggested charging a small flat fee for anyone wanting to paint a photo I've taken.
I guess I'm just looking for advice and any methods you folks use. Thank you very much in advance!!
We get a lot of this and inspire lots of consternation in the amateurs and some that sell their work, while getting nice trade from the actual pro painters. We charge a fee for anyone NOT selling the resulting painting. Anyone that plans to sell the painting signs an agreement to pay us half the income from the sale.
Those that object hear my favorite line: If photography is so easy, go take your own gosh darned pictures. Or words to that effect.
Hmmm, that's an interesting arrangement and worth considering.
How about this line I got from the gallery owner who wants the 20 artists to paint it--I said to him that I would then expect a commission from anything that is sold by them. His knee-jerk response, "really, they do all the work, and you get a commission!"
I couldn't believe he said that--but he's a REAL artist as well.
Anyway, appreciate the advice...
Bill
He could always transport everyone to the site and do a workshop on location. As an alternative, he could go there himself and take the photo for his artists to use.
I like the idea of him paying you $50 per artist for use of your photo, since this is AFTER ALL a moneymaking, attention-getting venture for his gallery. He obviously just wants a free lunch.
Nice to meet you, Mr. Lunch!
Ask him if he gets paid for selling paintings or does he do it for free out of the goodness of his artistic heart?
Honestly, some of these people are beyond belief.
Also, you should have a contract written up that includes your rights to the original image, how your image may be used, and the amount of compensation and how it is to be paid.
-P
Thanks in advance!
You might point that out to him, noting in the process that you are not dead and that you too are trying to sell your work, not give it away. Maybe the condition should be that they each buy a print to work from. In any case their results should be clearly labeled as "From a photograph by Bill Maile" if they are basing their paintings on your photo.
This can be turned into a publicity and sales opportunity for you if handled right. I.E. You could require that in addition to hanging one copy of your photo, the gallery have matted prints for sale, perhaps even prints of some of you other photos in gallery rack. There is the possibility that some buyer(s) of the 'interpretations' might want a copy of the original too. You could require that your marketing materials be prominently available (business cards, postcards, brochures, etc.) at thsi show. Or how about "Yes, but you have to give me a solo show in the future". Think of it as a cooperative event to expand your audience instead of just "How much will they pay me?"
Jim in the last post makes some good points as well.
When painters object to a fee, I'll just ask them if I can photograph their paintings for free and sell the photos! Nice.
As I understand 'derviative works', the rights (both intellectual and copy) belong to the creator of the original work. If someone copies any recognizable portion of an original work and calls it their own work and/or uses the work without permission and/or credit to the original artist, they are in violation.
The following is a reverse take on the situation, but I believe it illustrates the rights issue.
A few years ago, I was paid to make some large format photos of selected oil paintings done by a local artist. We discussed the 'rights' issue. The bottom line was that I could keep the transparencies for her use exclusively. I cannot print or sell any of them in whole or part. Nor did I receive any credit for the photos that appeared in a 'Western art' magazine.
I was well paid for my efforts, so I was fine with the tenets of our contract. It would have been nice if I had received credit for making the photos, but I was OK with that, as well. The bottom line here is that I really had no claim to any right on the use of the transparencies: The rights belong to the painter, in this case.
--P
Your work photographing an artist's paintings is not a "derivative work". What you have there is "work for hire" in which case {almost) all rights accrue to the artist who paid you to do the work. In that sense it is not unlike a photojournalist working for a newspaper on salary and under the editor's direction. The photos he/she makes are property of the newspaper, not the photographer (see http://www.copyright.gov/circs/circ09.pdf). I also do occasional work for artists and crafts people photographing their creations. I sometimes scan slides for film photographers. The product of those sessions are the exclusive property of the person I do the work for with one exception, the work becomes a part of my portfolio for showing the quality of my work to other potential clients.
A derivative work would be one in which you alter the original in some way, adding your own interpretation or elements, not simply record it or transpose it to another medium (i.e. film to digital). See http://www.copyright.gov/circs/circ14.pdf.
I have a set of photos made by my grandfather http://tinyurl.com/cwlryw which I scanned and have given copies to a couple of museums who were interested. I did copyright them which might be a tad questionable on a couple of grounds but the digital versions are my creation from glass plate negatives which are my property. In any case it is not my intent to profit from them. If a historian asks for permission to use them in a book or article it will be granted. My intent in applying the copyright is more to guarantee proper credit to grand-dad and so that I know how the photos are being used.
Jim Bullard
West Stockholm, NY, USA
http://jims-ramblings.blogspot.com/
Were you refffering to my comments above? I may have misunderstood the definition of 'derivative'. Just curious, but wouldn't a transparency that is faithful to the original work be considered 'derivative' because the media are different? Or, does the definition apply as you stated: "A derivative work would be one in which you alter the original in some way, adding your own interpretation or elements, not simply record it or transpose it to another medium "? The circular did not appear to make this clear, which is why I ask.
Thanks,
-P
It is a bit vague but I've always taken derivative to mean altered or added to in some way whereas faithfully scanning or photographing a work is reproduction. I think (I'm not a lawyer) that simply reproducing in another medium does not rise to the level of being derivative. Perry Mason might dispute that.
Jim
Painting an exact duplicate of someone's photograph is obviously stealing their view and their vision. I have no idea what the legal implications are, but painters use photographs all the time. Sometimes, they duplicate them too closely. In those cases, I think the painters are stealing. I asked a painter about it; a relative actually. She was so proud of her work that she totally lost or ignored the importance of the photographer. The phographer showed her everything - framing, light the whole thing. I have no solution. I only know that if you "publish" a photograph it may be input for a painter who is beyond your control.
Pete D. dearly wishes he could cheer you up, but that ain't gonna happen
And thanks Pete, I don't know the answers either.