Can I be sued?

[Sheila Renae]

What is the name of your state (only U.S. law)? Ky

I'm an artist that painted a picture that could possibly be identified by the photographer intuitively but not actually. What I did was use several photo images to paint an alligator eye. I then used only one photo of the iris and pupil and painted what I saw in that particular iris/pupil. If you compare the photo of just the regular iris/pupil with my painting--THEN you can clearly find the images in the photo. I painted the alligators habitat within this eye and when compared you can actually see the alligator head, swamp, cypresses, etc in an abstract way within the photo--these ARE NOT actual reflections. I merely interpreted the soul of the subject in a way that looks almost exactly like the lines and forms from the photo. Is this really deviant art and could the painting cause trouble/lawsuit from the photographer?

 

[FlyingRon]

The word is "DERIVED WORK" not deviant. Yes you very much could get sued. Take an example of the Shepard Fairey Obama Hope poster which was an infringing derivative of Mannie Garcia's photo of Obama. And learn well how to conduct yourself when sued. Fairey almost went to jail over destruction of evidence in the ensuing legal battle.

 

[quincy]

What is the name of your state (only U.S. law)? Ky

I'm an artist that painted a picture that could possibly be identified by the photographer intuitively but not actually. What I did was use several photo images to paint an alligator eye. I then used only one photo of the iris and pupil and painted what I saw in that particular iris/pupil. If you compare the photo of just the regular iris/pupil with my painting--THEN you can clearly find the images in the photo. I painted the alligators habitat within this eye and when compared you can actually see the alligator head, swamp, cypresses, etc in an abstract way within the photo--these ARE NOT actual reflections. I merely interpreted the soul of the subject in a way that looks almost exactly like the lines and forms from the photo. Is this really deviant art and could the painting cause trouble/lawsuit from the photographer?

This is not an easy question to answer, Sheila.

There are many factors that must be looked at to determine if your painting is a derivative of the photograph or transformative. One infringes and one doesn't.

It is almost always necessary to have a personal review of the works in question, for a side by side comparison.

There are some cases to review, if you are interested in seeing how courts look at situations like this. I will be happy to provide them but, again, it will probably be necessary for you to seek personal help from an attorney in your area or, perhaps, seek permission from the photographer to use his work in your work, for sale or display, just to ensure your use is safe from a lawsuit.

Thanks for starting your own thread, by the way. Your opinions offered in your other post have some merit and I don't entirely disagree that it could be helpful for both painter and photographer to work together in this way. Unfortunately the laws are not favorable to that idea at this point.


edit to add: The following is a link to a thread from 2011, on collages, but it covers the same area of copyright law that your use of the photograph in your painting does. You might find it informative - and it gives you some case material to review:
https://forum.freeadvice.com/copyrights-trademarks-39/my-wife-wants-make-collage-out-magazine-pics-sell-illegal-538460.html.