Can You Sell A Painting of Someone Else’s Child?

Ask the Experts: Legal Questions Answered for Artists

by Leonard D. Duboff

Can You Sell A Painting of Someone Else’s Child?

Q. Several years ago an acquaintance of mine commissioned me to create a painting from a photo of her granddaughter with her dog. The contract stated that I would do the painting using the photo for reference. I had giclée prints made of the finished artwork, which have since been displayed and offered for sale on another friend’s Web-based art gallery. Now the child’s mother is saying that she never gave me permission to paint her child, that doing so was against the law and that the images should be removed from the Web. I question this because the child never posed for me and because the grandmother, who took the photos, gave me permission to use them as reference. Who is right? ~Joan McCallum, Lansdale, PA

A. To begin with, I’m making two assumptions: (a) that the portrait you painted is substantially similar to the photograph you were provided to use as reference material and (b) that the child depicted has not yet reached the age of majority and, therefore, the child’s parent or guardian must sign a release on the child’s behalf.

There are at least two rights associated with the photograph: the copyright in the work and, because a live person is depicted, that individual’s right of privacy (or, if the person is famous, then the famous person’s right of publicity).

If, as you were told, the grandmother actually shot the photo herself and hasn’t assigned the rights to the photo to anyone else, then she would have the right to grant you permission to exploit one of the rights, namely, the copyright in the work.
However, the child’s right of privacy (assuming the child is not a famous person) is controlled by the child if the child has reached the age of majority (generally, the age of 18) or, if not, then by the child’s guardian. If the child is under the age of majority and the mother is her legal guardian and the portrait depicts the child accurately enough that she is recognizable, then the mother is correct.

The dog, however, does not have any right of privacy or publicity and, thus, depicting the dog in the portrait is not an issue.

More Questions and Answers on Copyright Law
Attorney Leonard D. DuBoff explains some of the nuances of artists’ rights.

Note: Copyright laws are subject to change. These articles reflect the laws in effect at the time they were written.

 


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