Copying Photos

Q: I’d like to know how old a photograph must be before I can legally paint a copy of it for commercial use. is there a statute of limitations on a photographer’s rights? Does it make a difference if it’s a photograph of a celebrity?

A: It’s now well established that the photographer has a copyright to the photographs she or he takes. It is, therefore, an infringement of the photographer’s rights for an artist to make a substantial copy of a copyrighted photograph, unless the reproduction is defensible as fair use. (Fair use exceptions allow limited use of copyright-protected material for certain purposes, such as criticism, comment, news reporting, teaching, scholarship and research.)

Photographs taken on or after January 1, 1978, are protected by copyright for the life of the photographer plus 70 years. If the photographer (a) was an employee working within the scope of employment, (b) published the photograph anonymously or (c) published it under a pseudonym, then the copyright in the photograph is the shorter of 120 years from the date the photograph was taken or 95 years from the date the photograph was first published. For photographs taken before January 1, 1978, the rules are far more complex. As a rule of thumb, unless the photograph was taken before 1923, the copyright in that photograph may still be in effect. Remember that only works that are substantially similar to protected works infringe. If you merely use the photograph for inspiration and your copy is significantly different from the original, then there is no infringement.

With regard to celebrity photos, approximately 30 states provide celebrities with a  right of publicity in their name, likeness and reputation. If your use a celebrity’s protected rights without his or her permission, you will be guilty of violating the celebrity’s right of publicity and, therefore, if your work is sold or exhibited in one of those states, you may be liable for damages. It’s worth noting that in many states the right of publicity survives the famous person’s death for a protracted period of time. This is one reason famous people generally have licensing agents who will consider permitting the use of a famous person’s name, likeness or reputation for a fee. Unfortunately, these fees can be substantial.

The laws on right of publicity are complex and not uniform from state to state. It’s, therefore, important to determine whether your state has such a law and, in addition, whether your work may ultimately be shown or sold in a state that does. you should consult with a knowledgeable art attorney before creating a substantially similar copy of a work created before 1923, as well as before creating a work that may trigger a right of publicity claim.

Note: Copyright laws are subject to change. This article was originally published in the April 2007 issue of  The Artist’s Magazine and reflects the laws in effect at the time the article was written.

Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.

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