Family Painting/Portraits

[SarahAdcock]

Good afternoon,

My first time posting here so thanks in advance for any advice in relation to my query.

I have been provided a photograph of a family which I am required to paint exactly as per the image. Now, here is my concern. The little boy has a superman logo on his t shirt and the little girl is dress as Elsa from Frozen. I have been asked to paint them like this but would I be breaching copyright if so? I am technically portraying the family directly from a photo so is this allowed?

I paint on wooden peg dolls not canvas/paper but I expect the same rules apply - I am just portraying the family on a different material.

Thanks in advance for any help!

Sarah

[AndyJ]

Hi Sarah,

No you don't need to worry about infringing copyright. Although the superman logo may be covered by copyright (the original comic version came out in the USA in 1938 and the artist who drew the Superman character, Joe Shuster, died in 1992) including it in your painting would amount to incidental inclusion and so would be covered by the fair dealing exception in Section 31 of the Copyright Designs and Patents Act.

Although there was a previous case in which the copyright in the Premier League emblem on some football players' shirts was found to have been infringed by a photograph of the footballers, the circumstances were quite different. In that case the court found that the fact that the football players were wearing the correct strip was fundamental to the purpose of the photograph (which was to be used on collectable stickers), whereas you will merely be depicting the little boy 'as is', and it wouldn't matter if he was in a different tee shirt.

The situation with the Elsa dress is much weaker still. It is highly debatable whether the dress itself is subject to copyright under UK law since it is a manufactured item which does not meet the criteria for a work of artistic craftsmanship, but even if it does, the same fair dealing exception would apply.

What is much more relevant in this instance, and any similar commissions you may receive, is the need for you to ensure that the author of the photograph which you have been asked to copy has given permission. In this case it sounds as if it was taken by one of the parents, however where the image has been produced by someone else (say a schools photographer or a high street photographers), permission would be needed.

And yes as you mention, it doesn't matter what medium you use to reproduce the original image, the same rules apply:

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.

(Section 17 CDPA 1988)

[Lumberjack]

I would think the photographer has long ago forgotten he even took the picture, and is hardly likely to say anyting anyway, having been paid to take it! Not much point in sueing your customers over something like that - gets a bad reputation. Anyway, in my opinion (that probably counts for nothing ) you are not copying a photograph, you are making a painting based on a photograph that is entirely different media from a photo. Might be different if you were making a painting of a picture of a biscuit tin lid, but even so, that (copying bicuit tin lids) is widespread amongst amateur painters, and I have never heard of anyone coming to grief over it!

[CopyrightAid]

that (copying biscuit tin lids) is widespread amongst amateur painters

Probably because 1. They are doing it for practice (i.e. private study = fair dealing) not commercial reproductions, or 2. They are so small scale it is either unnoticed or not worth the bother for the rights owner to pursue.

[Lumberjack]

I have seen a lot of these copied picture on sale though! I am not a painter, but my wife is, and is always pointing out paintings in galleries that have been copied from many sources, including biscuit tins, that are definitely still in copyright. Including paintings of film stars made from photographs!
The most disturbing thing about Andyj's reply is that I now discover that I have spent most of my life infringing copyright. I am 72, and since the age of 6 and have been building models, hundreds of them, from plans that are definitely still in copyright, and selling them! Also, anyone who has ever built a model aircraft, or model ship, yacht or boat, tank, armoured car, bus, truck, railway engine, or any other model is also guilty of reproducing something in 3D form.
The only good thing is that most of the artistic population of the UK would have to be prosecuted and punished, and it would appear to be an impossible task. It really is time that copyright laws developed a bit of "common sense!" It is all so vague and flexible, and no-one will ever come out with a definate statement that is clear-cut and unambiguous.

[AndyJ]

Also, anyone who has ever built a model aircraft, or model ship, yacht or boat, tank, armoured car, bus, truck, railway engine, or any other model is also guilty of reproducing something in 3D form.

... It really is time that copyright laws developed a bit of "common sense!" It is all so vague and flexible, and no-one will ever come out with a definate statement that is clear-cut and unambiguous.

Hi LJ,

I'm not here to defend the current state of copyright law, and in fact a senior copyright judge, Mr Justice Arnold is on record as saying he believes that copyright law in the UK is in serious need of an overhaul. But when you talk of common sense, that is what the courts will tend to apply where there is an obvious anomaly in the statute law. But as CopyrightAid has pointed out, anyone who makes a model based on original plans in the way you describe, will be covered by the private study exception. And of course if you buy plans from a model shop in order to build a model aircraft or ship etc, there is an implicit licence for you to do so without infringing any copyright. I appreciate that in your own case you are probably talking about plans taken from books on naval architecture, but that really isn't what Section 17(3) is there for. Arguably the law on design right is much more likely to be the problem, except that the term of protection is substantially shorter than with copyright (25 years for registered designs and between 10 and 15 for unregistered designs).

[Lumberjack]

Thanks,
That is something of a relief! 25 year duration is no problem at all for me, because most of the plans I use are, as you say, from old technical journals and usually date between the 1870s and 1965, after which date, I do not choose to use simply because I do not like modern designs.
So, I take it that plans in technical journals published up to my cut-off date of 1965, would be in the public domain anyway?
I had heard of this in the past, but I had also read somehere that it had been changed, and normal rules apply.
I do try and keep legal in this sort of thing, but find it virtually impossible, as so much different advice is given. But I suppose I am OK as no-one has ever said anything about it!