Dear Juan,

Excellent post. Not being a lawyer, I can't speak to the law here, but I can tell you that I routinely ask my sitters to sign a written agreement giving me permission to use their image, both in photos and paintings, as well as the painting itself (owner permission). This way my bases are covered, and the permission is in a file. (Of course if someone prefers me not to do so, I am fine with this,too). Getting your permission slips signed at the time to the painting is so important..it was an administrative nightmare trying to track down ten years of sitters to print images in "Painting Beautiful Skin Tones". Don't assume you'll never need them, because you just never know!

Chris

This line will absolutely be in my very next contract & all subsequent contracts. Thanks!

Hi Karin!

Here's what I have been using:

I_____give to (artist), her assigns, licensees and legal representatives the irrevocable right to use my name or any fictional name, portrait(s)and/or photographs(s) used as resources in creating portraits, in all forms and all media, and in all manners, including composite or altered representations for advertising, marketing, educational, merchandising, or any other lawful purpose; I agree to do so without compensation. I further waive any right to inspect or approve finished product, including written copy, that may be created in connection therewith. I am of legal age. I have read this release and am familiar with its contents.

I also ask how people would like their painting titled...some like to use phraseology like, "The Susan & John Smith Family Collection" and some like the anonymity of "Private Collection". I have a place at the bottom of the page for the legend specifics.

Chris

P.S. Karin, once you get your form together, you should probably plan on contacting your prior clients so that you can get caught up. Now that all of us here on SOG have decided that you will be writing a book and making a video, you will save valuable time later!

I do like your suggestion and will soon begin to contact my former clients.

On my website, I have asked my clients what they would like me to name their painting.

I ALWAYS suggest that the first and last name of a child not be published :exclamati. Long ago, my 6-year-old son got his picture and name in the newspaper and the result was that he was stalked by a pedophile. I was scared to death....and it went on for a couple of years.

I often letter names into my portraits, but it is (intentionally) nearly impossible to read them online.

Chris et al.;

It's good to hear that this issue is being treated professionally and seriously. It does nothing but bring higher regard to the artist's profession. We should remember that these contracts need not be ponderous and full of legalese, although I think most people feel they just aren't "legal" unless they sound like it. The fact is, all they have to be is clear. Judges like nothing better than clarity. Unfortunately, lawyers have worked hard for centuries to make things clear by obfuscating them. A neat trick, but unnecessary.

In any event, the reality of it all is that nothing will probably ever come of it. 99% of the time, no need will arise to invoke this sort of contract. It's like insurance where we do it "just in case". Moreover, most contracts or agreements are questioned by subsequent parties, not by the people who entered into them in the first place. For example, what happens if a sitter gets run over by a bus next week? Then, all of a sudden, they're gone and in their place is their legal estate. You signed a contract with a person, not with an estate, yet there they are, standing in the shoes of the original party to the agreement. You will want to have things clearly set down in writing so there's no mistake as to what the situation is. This is when written documents come in most handy. Otherwise, it can be a nightmare figuring out what's what.

One more tip: if you run into someone who is adamant about only doing business on a handshake rather than on paper, you can do a couple of things. First, you can refuse the job. If that isn't an option, then as soon as you get home, write down exactly what you remember of the conversation; even dialogue if you think it'll help. Write a page starting something like: Today, April 14, 2002, I entered in a handshake contract with so-and-so. We agreed that blah-blah-blah . . .. When you're done, sign and date it at the bottom again.

Then, put it in an envelope and mail it to yourself. (Oh yes, make a copy of it first so that you won't have to steam open the envelope if you forget something that was in the agreement yourself!) When the letter comes back to you via the post, don't open the envelope; just put it the file for that client and leave it. You may never have to look at it again, but it will be helpful if it's there. Verbal contracts are as legally binding as are written ones, but they are more difficult to prove. Taking some notes and this extra small precaution will at least give some weight to your position if it ever comes into question in the future.

Finally, I don't want to be scaring anyone into thinking that we are all in for a mucky legal quagmire. This stuff really can be quite minor and easy-to-do once you get a little boiler-plate phrase such as Chris has (personally, I'd make it a little less legalese-y :) ). Anyway, it seems that this issue is one that many of you have been aware of for some time and I guess I'm simply trying to reinforce it and to encourage others to do the same.

All the best,
Juan

Juan, would you suggest the wording for a less legalese-y but still legal boiler plate insertion into a contract?

Thanks.

Hi Juan,

I would also be happy to drop out some of the legalese...the likelihood of actually needing to do battle in court is so remote, that I don't particularly worry. In a practical sese, even if I have the permission on file, if I will be using someone's image, I would always go to the courtesy of letting them know. Not only does this further build our relationship, they are generally quite thrilled, want a copy of the ad, and will tell all their friends.

I think that one of the main values in getting the permission signed, is that you have a chance to tell the client clearly what you may want to do with their image, and it's good communication.

The fact is (I can see many of you cringe), I still do not work with a contract. During the course of eleven years and about 250 portraits, I've only been burned two times, and neither of the circumstances would have been changed by having a contract in place. This is not to say I haven't tightened up my payment policies, and I do offer written clarification about fees and expectations.

Chris

Juan,

Thank you for taking the time to clarify everything. Your posts were very helpful.
You asked who owns copyright in the US, the sitter or the artist? I think I heard once that we both do. I need their permission to duplicate the painting because it is their face I want to duplicate, but at the same time, even if they own the painting, the copyright is mine in that they can't go get copies of the painting for family just because their face is in it. They need my permission to copy the painting. Of course, I don't know how accurate this is.

The question of contracts came up in a few posts. I've been painting without contracts for a number of years, and just started using them this past year. My reason to start was not for legal reasons so much as it is my only way I could guarantee that the client and I understand each other. Last year I lost a commission because I told a customer in November that I would start her painting in spring and finish by the end of June.(the photos, interview, notes etc were done in Nov.) Anyhow, when April came she called wanting to know how the painting was coming. I reminded her that I said I'd start it in Spring and finish by the end of June. In her mind the painting should have been more in progress and she pulled out of the commission. How annoying that was because I already started the sketching on the canvas and knew I would make the deadline without a problem. I decided that if I started using contracts, the client would have in writing the approximate completion date and other details and they couldn't say they thought differently. Plus, I put in the contract right above the signature:

"Both the Client and the Artist are in agreement with the above terms, and are satisfied that all appropriate questions have been answered." And I point out this line and ask them if they have any questions.

I usually get permission to use the painting for brochures etc after it is completed. They're thrilled with the finished painting and are usually happy to give permission. I only had one person turn me down, she was a pediatrician that didn't want her daughter's image made public, she said there were too many crazy people. After what Karin said about her son, I can better appreciate why she wouldn't give me permission.

Mary

Fame etc.
 

Firstly you've got to use your own photos for all the reasons listed. Besides, the first thing someone will ask if you paint a celebrity is did they commission it and how long did get to visit with -----?

Good work will get good clients - real clients.

I have not read the entire thread, but agree with Tim. If you are working from someone elses photo, the work isn't yours. Part of it is the work of the Photographer. The photographer and the artist should be the same person. In my humble opinion.