Tip: Reference Photographs, Copyrights, and Privacy Rights

There are two legal rights to be concerned with when using photographs as reference in paintings. The first is copyright and the second is the right of privacy (or the right of publicity in the case of famous people). Each of these rights are briefly described below.

Right of Privacy

If you are painting a live person using a photograph as reference, the right of privacy applies. Each person controls his or her own privacy rights if they are a competent adult. Before a child reaches the age of majority (generally 18 years old) or if a person is legally incompetent, these rights are protected by the individual's legal guardians (such as a parent).

Before you can reproduce an image that is substantially similar to a living person, that person or person's guardian must sign a release allowing you to do so. In other words, if you are going to create an image of a person that is accurate enough to be recognized, you need his or her permission.

Copyrights

Copyrights protect the creator of an original work giving him or her exclusive rights to it, usually for a limited time. Copyrights apply to photographs, paintings, and other works of art whether they are found in books or on the internet. The idea is simple, unless a photographer has given you express permission to reproduce his or her photograph, you cannot copy it.

A more common practice is to use one or more photographs as reference when creating a new work of art. This can be done so long as the new image is substantially different from the original and would not be recognized as a reproduction. This of it this way, if someone was shown the photograph and your painting, would they say my painting was based on the photograph? If the answer is yes, then it is a derivative use of the photograph and not a reference use.

Public domain is the term for media that is totally free for the public to use. If you are looking for a photograph to model a painting after, this is what you want. For instance, all photographs made before 1921 are in the public domain as copyrights did not exist before that time. The terms "free" or "royalty free" do not mean that the photographs are in the public domain, only that you do not have to pay to use them. Copyrights still apply.