If I download a copyrighted photograph of prominent person (e.g. a politician or celebrity) and hire an artist to make a portrait of that person, using the photo as a guide, is that legal?

I'm thinking of the famous Obama "HOPE" poster. If I remember correctly, the person who made it was sued because it was based on a copyrighted picture. However, I'm guessing it was illegal because he essentially modified a copyrighted image, rather than making a "free style" rendition.

To put it another way, if I opened a copyrighted image in Photoshop and used some filters to alter it, I would be pirating a copyrighted item - even if my work didn't look like the original. But if I use a pen (or a computer graphics program) to draw someone's portrait while using an actual photo as a guide, would that be legal?

This kind of begs another question: If you hire an artist to create a portrait - either realistic or a caricature - how can you tell if they created the final product free style or by simply modifying the original image?

But I guess that's a question for a graphics forum.

  • If you create something based on something else, that is a derivative work. Whether you copy a creative work or make a derivative of a creative work by hiring an artist or by using a computer program like Photoshop does not matter. It is considered a copy and/or derivative work regardless of what method you used. It does not really matter whether you use "free style" rendition unless the local laws recognize a "sweat of the brow" doctrine. The U.S. does not, for example.
    – Brandin
    Oct 8 '18 at 5:13
  • Possible duplicate of Paint from someone's photo - copyright question
    – Brandin
    Oct 8 '18 at 5:16

If you make an image based on a copyrighted image (without permission) that is a derivative work, and making it violates US copyright law. This is true whether the new image is made via a computer program such as photoshop, or by an artist working freehand.

However, a person's facial appearance is a fact, and cannot be copyrighted. If an artist views several different images of a person's face, from several different sources, or views the person directly, and then makes a new image of the person based on all of those, and not based particularly on any one source image, then that new image is probably not a derivative work, and is copyrighted only to the artist who created it.

But if this is a living person, the subject will have 'personality rights' and if the new image is used to advertise or market a product or service, that may well violate those rights, and could lead to a successful lawsuit against whoever used the image in that way. Before using someoen's image commercially, it is wise to obtain permission from the person, or to consult a lawyer knowledgeable in this field.

The above is based on US law, and may not apply elsewhere. It is also not legal advice, and I am not a lawyer.

  • Interesting. Suppose the artist changed the hair a little, slightly modified the facial expression and changed the hand gestures? The resulting picture is strikingly similar to the original, yet it's also very different. I imagine a judge and jury would simply have to decide if it is dissimilar enough to be legal, huh? Oct 9 '18 at 2:19
  • How similar is similar enough is ultimately a matter for the jury if it goes to trial, but if it appears "STRIKINGLY SIMILAR" they might find it infringement, and even if they don't defending such a case would be rather costly. If there was evidence that a particular image had been used that would tend to incline the judgement towards infringement, i would think. But you never know. Still, much safer to use multiple sources, rather than copy any one image. Oct 9 '18 at 2:47

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