Oil Painting of a photo of me

'Is it legal', 'can I do this' type questions and discussions.
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Kirsti2305
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Oil Painting of a photo of me

Post by Kirsti2305 » Tue Nov 19, 2013 4:12 pm

Hello, I need some help please

My mum took a photo of myself to a friend to make an oil painting of it. Once he had done so, he gave it to her as agreed. It then got a little smudged, she gave it to him to then repair. Once he had done so, he then asked for £300. She refused to pay as he had never said anything of the sort. A while later we have approached him again as I really don't like that he has a picture of me, he is now asking for £900 for it!!

I don't know anything about art. The picture is about 70cm x 60cm on a regular canvas. The artist is not a "professional" he paints in a studio in his mums back garden in his spare time. I can guarantee it is not worth £900. We are happy to pay some money for it as it is a lovely picture for my mum to have of me, however We are not to be made fools of.

I am wondering if I have any sort of copyright rights? The photograph was taken my a portfolio photographer and given to me as a gift. I have posted a scanned version of the picture onto my Facebook page, so if my mum hadn't given him the picture he may have taken it off there!

Please if anyone can help, with advice or pass on links to someone/somewhere else who can really help it would be much appreciated! The longer he has a picture of me sat in his studio the more it freaks me out!!

Thanks

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AndyJ
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Post by AndyJ » Tue Nov 19, 2013 8:07 pm

Hi kirsti,
I'm sorry that you are upset by this. I'm not entirely clear on the exact basis on which this portrait was started. Did your mother request that the portrait was painted for her use, ie that she commissioned it? If that is the case then there might well be a contractual issue, if the artist is withholding the painting because he wants more money than was originally agreed (which was presumably, nothing). Unfortunately for a proper contract to exist there needs to be an exchange of what is known as consideration for any goods or services. This can be a small token as in a peppercorn rent, but it does need to exist or there can be no bargain. Unfortunately the law is very poor at sorting out such near domestic issues, where friends and acquaintances agree something which later fails to materialise. If this aspect can't be resolved amicably, I would suggest going to an arbitration service, although that will not be cheap and requires both parties to agree to it.
However you came here to find about about the copyright situation. Copyright in the photograph almost certainly belongs to the photographer or the company he works for if this was a shoot organised by him in the course of business. He will have given you physical copies of prints from the shoot as part of that arrangement and even if these were not accompanied by any written licence on how you might use them, the presumption would be that you could use the prints for the purposes of self-promotion, as this is the main function of a portfolio. I'm not at all sure that any implied licence would also cover authorising the artist to make a copy of the print in oils, although let's initially assume it would. In that case then the artist was duly authorised to make the copy and so no infringement has occurred. Depending on how slavishly he copied the photograph, there may possibly also be copyright in the painting, and if so, then that copyright will belong to the artist and not your mother or you.
Alternatively if the photographer wished to object to your mother using his photograph as the basis for the painting, even though he might have a reasonable chance of success against the painter, the remedies available to him would be limited. So I suspect that the photographer would be unlikely to want to take the artist to court over this due to the cost, and because that would also implicate your mother because she would be liable for authorising the infringement. If you are interested in how an actual case with some similarities to your own situation was resolved by the courts, take a look at this: Delves-Broughton v House of Harlot Ltd.
I'm sorry not to be able to indicate a way out of your current dilemma.
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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