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Selling original oil paintings of NBA players, Nike shoes, etc. Is this legal?
- Thread starter macaddict23
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there was a court case involving an artist, Jeff Koons, who used a photo as the basis for making a sculpture. The photographer sued and the court ruled in favor of the photographer.
from the inevitable wikipedia article about the case;
and it seems to me there was a different case involving Jeff Koons where the court decided that any copying from a photo wasn't obvious and that the image involved a generic pose which couldn't be protected.....so yes, it can be quite tricky when it comes to what is usable and what isn't
nope
While it's true that a copyright or trademark holder has rights, you can't copyright or trademark your face or person in the way that's implied here.
At best these paintings would only raise an issue over trademark use if the logos of the teams or Nike were used in great abundance and on a regular basis. For safety's sake you might want to change the "Nike" to a "Noke" or something like that, but it's arguable as to whether you even have to go that far.
You can also get into trouble this way if you are defaming or misrepresenting products in the painting, and moreso if you are misrepresenting Jordan himself. For instance if someone painted 100's of pictures of Jordan and each one showed him doing a different despicable or dastardly thing, then it can be argued that character assassination or defamation was the main goal, not art.
In short, no one can stop you from painting a picture of a Nike shoe or of Michael Jordan and also selling it, but if the purpose of the paintings is to "say something" about either, you have to be very careful about what it is the paintings are saying.
Finally, if literally every single painting is "about" the Nike shoes, then you might be drifting over into advertising territory and Nike could try to shut you down as they have a right to control their product image to a certain (small) extent. No one can legally produce "Coca-Cola" art for instance, (at least not as a business), but anyone can paint a picture that happens to have a Coca-Cola sign in it.
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This is mostly wrong.
While it's true that a copyright or trademark holder has rights, you can't copyright or trademark your face or person in the way that's implied here.
At best these paintings would only raise an issue over trademark use if the logos of the teams or Nike were used in great abundance and on a regular basis. For safety's sake you might want to change the "Nike" to a "Noke" or something like that, but it's arguable as to whether you even have to go that far.
You can also get into trouble this way if you are defaming or misrepresenting products in the painting, and moreso if you are misrepresenting Jordan himself. For instance if someone painted 100's of pictures of Jordan and each one showed him doing a different despicable or dastardly thing, then it can be argued that character assassination or defamation was the main goal, not art.
In short, no one can stop you from painting a picture of a Nike shoe or of Michael Jordan and also selling it, but if the purpose of the paintings is to "say something" about either, you have to be very careful about what it is the paintings are saying.
Finally, if literally every single painting is "about" the Nike shoes, then you might be drifting over into advertising territory and Nike could try to shut you down as they have a right to control their product image to a certain (small) extent. No one can legally produce "Coca-Cola" art for instance, (at least not as a business), but anyone can paint a picture that happens to have a Coca-Cola sign in it.
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Koons is a tool who makes money by paying craftsmen to create his work.
Like that solid silver Bunny or something or other.
Hes not really an artist IMO.
from wikipedia:
thus, not a real artist. IMO.
Virgil-TB2 said:
This is where slander and libel come into play.
But again, I ask who says its illegal to paint anything I want? And who says its illegal for someone to want to pay me for it? Granted, I guess, accepting payment is somehow illegal, but wtf, someone wants something they get it? Right?
You can paint, write, photograph etc.,. pretty much anything you want.
Once you start selling what you create it turns into a business and the rules change.
No, not really. Just because someone wants something doesn't mean they can just take it.
Lethal
Actually, not selling but 'publishing' - making it viewable to people, whether for money or not - can trigger other rights.
Good article here
http://www.asmp.org/commerce/legal/releases/
Several things might pertain - the right of privacy and the right of publicity
and here
http://www.danheller.com/model-release.html#4
Sdashiki said:
That is pretty much wrong. Depending on the purpose it was sold for, if the individual is identifiable, there are several things you can get contested over. Defamation (just because you don't think it's libellous doesn't mean the subject has the same value attached to it), invasion of privacy, and the right of publicity - see the PDF linked at http://www.editorialphoto.com/resources/legalnews.asp re: the right of publicity. Also an article on that same page about substantial similarity - where the idea of a photo is copied in another photo or another medium.
Here's a useful test: Would the paintings sell if they were of an unknown basketball player posing, and not recognizable as MJ? No? Then they are trading on the subject's fame or recognizability and are probably infringing on MJ's rights.
Good point. I chose my words poorly. I was trying to draw the distinction between private, personal use and public use and didn't do it very clearly.
Lethal
yes, it's not the same as a copyright or a trademark; but no, you don't have the right to use somebody's image for commercial purposes without getting their permission......you can't just slap a picture of somebody on your product because you want to.
what CanadaRam has written is critical in considering the OP's question. Is his brother's interest in selling art? or in selling a commercial product that relies on MJ's image?
Well that person wouldn't be interested in buying the painting if MJ wasn't the focus, so.......it's illegal?
Exactly, so it really depends on how much the OP's brother took from the photo, and how much he created. If it's an obvious copy, then it's clearly illegal.
Exactly, so it really depends on how much the OP's brother took from the photo, and how much he created. If it's an obvious copy, then it's clearly illegal.
It seems to depends on the nature of the painting.
There was a court case (Comedy III Productions Inc. v. Gary Saderup, Inc) in california that involved an artist who made drawings of The Three Stooges and sold prints of the drawings. The Stooges sued to stop him and won.
(quoted from a description of the case here)
but if the artist's work was "sufficiently transformative", then the artist's "First Amendment Rights" might prevail over the celebrity's "Right Of Publicity"
I cant argue a point I havent personally been involved in.
For me, Ive sold 200+ paintings of "copyrighted" characters and yet not one word of legal issue has been raised.
Why?
Because I never sold the paintings to anyone. I sold commissions. They asked me to paint something, paid, I painted it and shipped it to them.
Is THAT illegal? Painting what a customer commissions me to do? Whether it be the Pope, MJ or Bart Simpson?
For me, Ive sold 200+ paintings of "copyrighted" characters and yet not one word of legal issue has been raised.
Why?
Because I never sold the paintings to anyone. I sold commissions. They asked me to paint something, paid, I painted it and shipped it to them.
Is THAT illegal? Painting what a customer commissions me to do? Whether it be the Pope, MJ or Bart Simpson?
It's always easier to ask forgiveness than permission..
That being said, realistically, the MOST that would happen is at first he gets a "cease and desist" letter. At that point you either stop, or then they bring in the big guns.
That being said, realistically, the MOST that would happen is at first he gets a "cease and desist" letter. At that point you either stop, or then they bring in the big guns.
And give you tons of publicity which leads to much more commissions which lead to much more money and even more exposure!
probably because the copyright holders aren't even aware that you've violated their copyright (if we assume you have). As you say, your painting goes directly from you to the buyer who puts it up in the privacy of their house, so what copyright holder is ever going to be aware of what you've done? And if they don't know what you've done, why would you ever have anybody raising copyright issues with you?
Whether you sold a painting or sold a "commission" doesn't make any difference. The issue is whether you have the right to make a copy in the first place. It simply doesn't matter how you get paid, or even if you get paid.
Celebrities can register their image, and most if not all modern celebrities do it.
Go to Library of Congress and look for what can be copyrighted and trademarked. I think it's under trademark.
Reason you see unauthorized photographs in tabloids is because those are attached to news stories, and are protected under freedom of press.
Think about this. If your brother make the same painting of his neighbor and seel it, would people buy, consistently it for the same amount as the paintings with MJ? If not, then the celebrity can prove that their image is what is selling the paintings, and you owe them compensation.
And also, have you heard of "MODEL RELEASE"? That's the right to use someone's image for commercial purposes.
Go to Library of Congress and look for what can be copyrighted and trademarked. I think it's under trademark.
Reason you see unauthorized photographs in tabloids is because those are attached to news stories, and are protected under freedom of press.
Think about this. If your brother make the same painting of his neighbor and seel it, would people buy, consistently it for the same amount as the paintings with MJ? If not, then the celebrity can prove that their image is what is selling the paintings, and you owe them compensation.
And also, have you heard of "MODEL RELEASE"? That's the right to use someone's image for commercial purposes.
The "existing photo of Jordan, whether it's from a magazine, online, or a book" is copyrighted. Copying it, even in another medium, is copyright infringement. Get a lawyer or at the very least read FAQ on the U.S. Copyright Office Web site instead of basing an entire business venture on free legal advice obtained from unknown sources on the Web.
Yes.
You are infringing on the owner of the image's RIGHT to control how, where, and for what compensation their image gets COPIED.
Oh well, sue me.
people will get what they want, and if they want something from me, ill give it to them. the original owners of the copyright wont.
Oh well, sue me.
people will get what they want, and if they want something from me, ill give it to them. the original owners of the copyright wont.
So long as you understand it's completely illegal!
I argue that its not, and did in the other thread last year.
Im not gonna continue to do so.
I believe private, person to person, art sales are completely irrelevant with regards to copyright law only insofar as they would never become publicly sold.
Well you are completely wrong. You are making money off of someone else's work plain and simple however you want to rationalize it. That's all.
Its my work. I painted it. They paid me to do it.
I never claim to be the designer of the character or original. People see my past work, go "gee, id like you to paint this for me", and I do it. Fine, call me a criminal, I say Im just an artist*.
EDIT: *its not art, its craft. artist fit with the medium in question.
Its my work. I painted it. They paid me to do it.
I never claim to be the designer of the character or original. People see my past work, go "gee, id like you to paint this for me", and I do it. Fine, call me a criminal, I say Im just an artist.
You are not an artist.