One of the more common questions beginning artists ask is in regard to painting from photographs. A few weeks ago, I talked about using the work of professional photographers as reference material. If you missed it, you can read Professional Photography and Artwork by clicking here.
But there is another side to this issue that’s even more often overlooked.
The popularity and proliferation of digital picture taking devices of all types makes capturing images very easy.
But that’s not all there is to the process and many artists get into trouble in thinking that if they can photograph it, they can paint it and do whatever they wish with the resulting image. That is simply not true.
Many things that can be photographed easily also happen to be off limits when it comes to using their likeness for any commercial purposes.
For the sake of this post, when I use the term ‘commercial’, I mean the sale of an artwork, reproductions, or the sale of any form of derivative product from coffee cups to cross stitch patterns and everything in between. If you make money from it, it falls under the umbrella of ‘commercial’ for the purpose of this discussion.
I paint portraits of horses for fun and profit. Sometimes, an owner wants what I call a ‘moment in time’ portrait. A portrait that captures more than just a horse’s likeness; it captures an event.
Some of those moments in time happen at racetracks or other locations and some of those locations are well enough known to be recognizable on sight by a lot of people and to be recognizable by name to many more. Some of them guard that public image zealously.
Unless you are familiar enough with the location to know it’s overall philosophy on the use of its recognizable features, it’s a good idea to contact them first and get permission. Find out whether they would consider a portrait that includes their facilities to be ‘reasonable use’ and good public relations or an infringement. Knowing that can mean the difference between a successful project and long, drawn out legal proceedings.
Sometimes, all it takes to get into trouble is including a logo or part of a logo in a painting you plan to sell. If you don’t have permission to use that logo in any form, you open yourself to the prospect of legal action.
“Haven’t you seen a movie lately?” you ask. “Look at all the logos that appear in the movies.”
Yes, I have seen a movie lately and yes I have seen all the logos.
Have you ever watched the credits all the way through? Ever noticed the legal department? It’s no surprise if you haven’t because it’s usually buried toward the end of an exceedingly long list of names and titles, but it is there. In order for recognizable logos and images to appear in the movies, one of two things happen. The production company lawyers acquire release forms from the appropriate people OR the company pays big money for the privilege of being shown.
If it’s important enough for film companies large and small to pay attention to these details, then all other artists should also pay attention to them. And it won’t cost you an arm and a leg.
It will cost you a little time and effort, a little internet research, and a letter or email or two. If you get permission, good! If you don’t, then you know in advance not to go down that road.
What About the Horses Themselves?
I’ve gotten into the habit of asking permission to paint the picture of a horse I don’t own if the horse is ‘famous’ for the very simple reason that some horses are off limits. For whatever reason, the horse owner has chosen to ‘protect’ the likeness of their horse by making it necessary for anyone to get explicit permission (usually written) before doing any artwork.
Quite often, a fee is required beforehand. Sometimes, a percentage of the sale of the resulting work is also required.
Does all this sound depressing and discouraging?
Don’t let it be. It is simply the times in which we live.
Rule of Thumb: Ask first. The adage “It’s easier to ask for forgiveness than permission” DOES NOT apply.
The bottom line is that, like all things in life, the choice is yours.
But be aware. Don’t make decisions based on the thought that it could never happen to you or that no one will notice. It COULD happen to you and, if you do anything but keep your finished paintings in a closet, there is the chance someone WILL see it.
In the long run, spending a little time and effort before launching into a new painting project could save you time and effort AND heartache and loss afterward.