Is this fraud?

[George Holmes]

Cynthia:

The question is a classic law school exam question. There is no hard pat answer. Each set of facts will have variables that may change the outcome. The factual scenario you propose creates more questions than "Is this fraud?" It may just be plain old vanilla breach of contract, then again it may not. Even if it is fraud or breach of contract, there is the question of whether the customer received what they paid for? i. e. is the finished product what the customer wanted, as good, or better, than the contracted artist? Also, there are questions of what are accepted standards in the portrait artist industry in general and particular location. What was the wording in the contract, was there a written contract? What was the studio set up? What was the level of participation or supervision of the contracted artist (was it just partly fraud/breach)? Was the original contract artist sick and just trying to help the client? When did the client know about the switcheroo? Prior to final payment? After final payment?

If the customer was not satisfied with the final product, how is this different from the normal situation of a dissatisfied client?

If it is fraud or breach of contract and if the product was not as good as expected, how is the problem cured? Money? How much? New portrait or touch up the first one? Who keeps the first portrait if there is a new one? Who has the "copyright" of the first portrait?

The answer for all the participants here is probably don't farm it out without covering that in your contract. Isn't there a lawyer who writes articles sometimes for one of the artist magazines about art-legal issues? This would be a good article for him/her if someone knows whom and how to contact.