RE: Re: painting of a photograph

Joseph Riolo wrote:
> <DMillward[_at_]png.canwest.com> wrote:
> >
> > An artist wants our permission to make a painting from a
> photograph of ours
> > that ran in the newspaper. I understand that if the painting is an
> > adaptation, or a derivative work, or very close to a replica of the
> > original, then permission is required. Is that correct?
>
> In the U.S., yes. But, based on the address at the bottom of
> your post, you are in Canada. The definition of adaptation and
> derivative work varies from one country to other country.

The right to create an adaptation (derivative work) is NOT one of the exclusive rights of the copyright holder of an artistic work (a photograph) in Canada (following the British model along with Australia and New Zealand), unlike in the US. The courts are not likely to hold that a painting based on a photograph is a reproduction (there is case law asserting that a photograph of a painting is a reproduction). Bottom line: the artist doesn't NEED to ask for permission so be careful charging for it.  

> If the photo contains people, is
> there any concern about publicity rights?

Countries in the English tradition like Canada probably don't have to worry about publicity rights unless the painting is implying the subjects of the painting are endorsing something.

> Do you want to let
> the artist make reproductions of the painting? Or, do you
> want to have a portion of revenue that comes from the sale
> of reproductions? Do you want the artist to indemnify you in
> case he or she is sued?

You can try but the artist is foolish if he or she buys into this.

-- 
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
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