Portraiture: Copying a watermarked(?) digital photograph

'Is it legal', 'can I do this' type questions and discussions.
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Portraiture: Copying a watermarked(?) digital photograph

Post by LiamMassey »

This is my first post, so 'hello!' from North Wales!

I hope someone can help me, as I'm worrying a little about the situation I'm in regarding a portraiture commission I've recently taken on.

I've been asked to do a pencil portrait using what appears to be photography shoot sample - it includes a digital watermark for the company who created it.

My understanding is that the customer has not bought the photograph from the studio.

No money has been exchanged between myself and the customer yet.

I'd like to know whether I would be able to legally complete this commission and receive payment as the situation stands, or if not, are there any steps either myself or the customer can take to do this all in the correct way?

Any help would be greatly appreciated.

Many thanks,
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Post by AndyJ »

Hi Liam,
You are wise to ask for advice on this one, as you could be walking into problems.
From what you have told us, your client appears to have a proof image from a company who presumably provide photographic services.
The company will be the owner of the copyright in the photograph, hence their digital watermark. Anyone (including your client) who made a copy of the photograph in any medium without permission from the copyright owner would infringe that copyright. The client probably has the photograph purely as a finished product which they can get framed (unlikely as the image is watermarked) or as a proof copy to enable them to decide if they wish to order enlargements or prints on canvas etc. The clients do not have a licence to authorise you or anyone else (such as a copy shop) to make copies of the original work as that is a right reserved absolutely to the copyright owner. The law is also specific about making a copy in a different medium as would be the case with a pencil drawing made from a photograph, as shown in the highlighted bit of Section 17 of the Copyright Designs and Patents Act.
17 Infringement of copyright by copying.
(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.
(4) Copying in relation to a film or broadcast includes making a photograph of the whole or any substantial part of any image forming part of the film or broadcast.
(5) Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
If you were to create a pencil version, then you could be liable, even if you had a reasonable belief that the client had the right to authorise you to do this. This would be a case where ignorance of the law was no defence. But this would be a civil matter and a court would only be likely to award damages against you, probably in proportion to the loss claimed by the photography company. However there could also be substantial legal costs involved.
Even if you had entered into a contract with your client, the contract would have been void on the basis that no contract can compel a party to commit an illegal act (contracts which are 'illegal in their performance' in the legal jargon).
The best way to resolve this issue is to explain to your client that what they are asking you to do would not be legal, and suggest they obtain permission from the photographic company. Since this is presumably not a service the company can provide themselves, they may provide a licence to the client, in return for a nominal fee, but of course they may also refuse.
Should they refuse, it might be possible for you to take your own photograph of the client(s) to use as your template, and when it came to the drawing stage, incorprating the most salient features which made the client want the original to be done as a drawing (say a particular expression or posture which you didn't manage to capture in your photograph). Clearly this solution may be limited by your ability both as a photographer and as an artist, but it would certainly avoid any liability with regard to infringing the original photograph.
People sometimes think that if they change a few details when copying something in the original manner your client wanted, they can escape liability. The problem is that the law says that infringement occurs when a substantial part of a work is copied, and it is usually up to a court to decide what constitutes 'substantial', and I suspect that would not be a route you want to go down, even if you were ultimately found not to have infringed.
Good luck with your venture.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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