Photo legal issues

[Alexandra Tyng]

Originally Posted by Patt Legg

I am so honored and fortunate that I can do what I absolutely love to do and be compensated somewhat with it.

Me, too!

As for the contract issues, we have to be consistent and insistent. I had a prolonged contract issue a couple of years ago with a lawyer in charge of contracts for the commissioning institution. He wanted to take my copyright away, and acted as though I was a starving artist and he was doing me a favor by paying me such a high price. I replied that I was taking a cut in my usual fee to conform to their standard payment, and that I didn't appreciate the fact that, on top of that, he was trying to take my copyright away. I ended up keeping the important rights, but I felt he was deliberately creating a power struggle. Later I found out that another artist who did work for the same institution at the same price had no trouble with the copyright!

It opened my eyes to the possibility that people might accept something without blinking from one person, and give someone else a lot of trouble. It is best to be totally confident, firm, but pleasant. And don't be afraid of losing the comission even if you could really use the money.

[Terri Ficenec]

Originally Posted by Michele Rushworth

. . .On the question of getting permission to use your portraits in your marketing material: legally speaking an artist has the right to make a forty foot billboard of art that he created and plaster it all over Times Square, if he wants to. The artist owns the copyright to it even if the original art is sold.

What you do need to legally ask permission for is to use "the likeness" of that subject (it's a Privacy law issue, not a Copyright law issue at that point). Whatever language you use in the Model's Release portion of your contract, where you get permission to even paint a likeness of them in the first place, is where you should specify that you need the rights to use the image of that person in your marketing materials. . .

Michele... hmmmmm... you've explained this so clearly! I'm thinking to incorporate the term 'likeness' and to reword slightly to make sure that mine is completely clear on this. Thanks!

[Joy Thomas]

Pat,
I just returned from making portrait deliveries out of state, so I'm in on this a bit late.
My accountant is quite clear about taxes:
If a painting already exists (say a landscape, still life or headstudy) and a collector buys it from your existing inventory, then you are supposed to charge sales tax... but if you are commissioned to paint for a client, you may be eligible to report your income as one who provides "contract services".

Artists that travel from state to state and even abroad for contracted work will find it very difficult indeed to keep up with all of the different sales taxes.

Setting up for contract services is more complicated and you will pay your estimated taxes quarterly, as a manufacturer.

You really should talk to a certified accountant, preferably one that has experience with contract laborers like finish carpenters, interior designers, architects and so on.

As to the subject of using the images of your clients....you simply must have their permission. Never use someone's image or name without permission and most certainly never ever publish images or names of minors without permission from a legal guardian.

I also let my clients know, that under no circumstances am I to be left alone with a minor...
a legal guardian must accompany us at all times.

[Michele Rushworth]

if you are commissioned to paint for a client, you may be eligible to report your income as one who provides "contract services".

My accountant and our state sales tax office said that, because I deliver a product at the end of the process, that I am a retailer and need to charge and submit sales tax. Perhaps it differs from state to state but it's better to check. Our state sales tax department audits small businesses periodically so it's better to be safe than sorry!

[Chris Saper]

Arizona in one of those odd states that,as Joy states, does not require state tax to be paid on commission one-of-a-kind original work - however the various city jurisdictions do require a sales tax on all but out-of state ordered and shipped. So you DO need to check!

As in Joy's experience, in AZ, existing inventory would be subject to both state and city taxes, as would giclee prints, etc.

Not be be splitting hairs but if you are not required to charge state sales tax, you'll want to be sure that your commission status doesn't fall into a "works-forhire" category, in which case you may not be retaining copyrights. (Like research done at universities, etc.) If I say anythinkg more I fear it would be reckless. Listen to your accountant.
Or maybe one of our lawyer moderators will pipe up here

Art is a luxury item. In their minds, artists shouldn't act as though they are bona fide business people, and if you do, they get annoyed and uncomfortable and maybe even suspicious or worried.

What a slippery slope. First it will be the artist as a luxury item producer, then Rolex, and finally Rolls Royce. I hope their lawyers are on it.

[Cindy Procious]

Originally Posted by Terri Ficenec

Michele... hmmmmm... you've explained this so clearly! I'm thinking to incorporate the term 'likeness' and to reword slightly to make sure that mine is completely clear on this. Thanks!

Well, when you do, be sure and post that, too, so I can update my contracts. LOL.

[Cindy Procious]

Originally Posted by Joy Thomas

As to the subject of using the images of your clients....you simply must have their permission. Never use someone's image or name without permission and most certainly never ever publish images or names of minors without permission from a legal guardian.

This is a subject that bears further exploration. I have had many arguments with my husband about this (good-natured, of course) and I have yet to find the final word on it.

Does a person give up their right to privacy when they go out in public? Can you, as an artist, indiscriminately snap photos at, say, a parade, and then paint from the photos? Can you then sell the paintings?

Or, does a person have an inherent right to privacy, and furthermore, do you, as an individual, own the copyright to your own image/likeness?

I know someone who takes photos of people in the subway, and then paints them, and puts the paintings up for sale. I thought she could be risking a lawsuit, if someone walks into a gallery and sees their face on one of her paintings!

Does anyone know the law on this, or is this also something that varies from state-to-state?

[Michele Rushworth]

Or, does a person have an inherent right to privacy, and furthermore, do you, as an individual, own the copyright to your own image/likeness?

Yup.

I know someone who takes photos of people in the subway, and then paints them, and puts the paintings up for sale. I thought she could be risking a lawsuit, if someone walks into a gallery and sees their face on one of her paintings!

...and Yup again!

[Cindy Procious]

You say yes, but, do you have this on authority from a lawyer? You're supporting my argument, here - I need proof to one-up my husband! LOL

[Linda Brandon]

Cindy, two rights generally found to be under state law include the right to privacy (a tort concept, and not always a state law concept) and the right to publicity. Only about half of the states address the right to publicity; sometimes states address this issue under the law of unfair competition (I think). I don't think these rights fall under federal copyright law, but I have never actually looked this up myself. There are a few books you can Google that address this and if you are so prepared you can crow triumphantly to your husband that you know the law and he doesn't, which will really annoy him.