Our son is a brilliant artist. He also occasionally* suffers from profound autism. He doesn’t paint from life or his imagination, but only from photos. Most of these photos are certainly copyrighted.
If we decide to sell any of his work or prints of them or, say, make a calendar out of them, do we owe the original photographer a share?
Thanks for your advice in advance.
*He mostly seems to enjoy being himself immensely
I’m pretty sure that autocorrect is responsible for the misspelling in the title. Yeah, that’s the ticket.
It would most likely be under the category of derivative work, so the original photographer would hold copyright.
You can contact them and ask permission. They might be willing to grant it with minimum or no payment (or a royalty).
Alternatively, you could find him some photo’s that are not protected.
Yup, that’d be a derivative work. Without the new painting being strongly transformative, your son can’t sell them at all without prior permission.
Do you think he might also enjoy photography? That way, he could take his own pictures and paint them later.
He does enjoy photography, but his photos are of things that are pretty much only interesting to him. His best work comes from images from books of photos and decorative calendars.
Not that his self-inspired works are bad, just less inspiring to neuro-typicals.
I love them, but most others are underwhelmed. Whereas his “derivative “ works are highly praised by all who have seen them.
There’s nothing wrong with derivative art; just don’t sell it.
I guess if we move forward with this idea we are going to have to do a lot of research and contact a lot of photographers.
Or we could wait and see if they can be bothered to sue a disabled person.
For $150,000 plus court costs, they will be. That’s the maximum penalty for willful infringement.
Whoa. That’s a little scary. Maybe we should try the first option. 
Yes, the key word is “transformative”. If it’s changed enough to appear an original artwork, it’s copyrightable itself.
OTOH, even the Obama HOPE poster has a disputable past and it’s pretty “transformed”. (“…they settled out of court…” which probably meant neither photographer nor painter was confident of a win)
He’d have to be doing works pretty abstract or altered, which I’m assuming is not the case.
(1) You are asking the wrong question. It’s not whether you owe the photographer a share. It’s whether you need permission (a.k.a., a license) from the photographer.
(2) Short answer: A painting from a photograph is likely a derivative work of the photograph. A copyright owner holds the exclusive right to make derivative works. Thus, permission must be obtained.
(3) Students often use other people’s works as references to learn how to paint. This is likely fine, so long as the work is used only for educational purposes.
More detailed answers—
It was settled out of court mostly because the maker of the poster falsified evidence and was headed for a big loss.
You might also stick to photographs published before 1924. Any claim of copyright protection in them would have expired.
Wow, Ascenray, that’s a lot of information. Thanks!
Now I’m starting to worry that the fifty or so works of his we have hanging on every wall in our house might be a hanging offense.
I know you’re joking, but overstating the matter isn’t helpful.
So long as you keep them in your house and only your family, friends, and other close associates see them, there’s little to worry about. But don’t display them publicly or sell them.
Is the success of your son’s paintings based primarily on the talent of the original photographer, or your son’s original interpretation of them?
If the latter, this passage, from Acsenray’s cite above, could be a key to avoiding problems:
Can your son work from photos in this manner? For instance, if you got him several shots of the Eiffel Tower from the same angle, and he used them to make a picture of the Tower that wasn’t a slavish copy of any one photographer’s image, there would be no likely copyright infringement.
But if his pictures owe most of their perceived quality to the unique vision of the photographer that he has simply copied, then you might try contacting the photographers, explaining the situation, and asking permission to make paintings based on them. Some, if not all, may be sympathetic and agree.
What subjects does he prefer? Portraits, nudes, land-sea-sky-city scapes, funny animals, natural or human landmarks, machines, performance, sports, what? Can he be inspired by un-copyrighted images? Could you print booklets of online public domain images?
I would honestly love it if any suggestions I could make would have any influence on his choices, but that ship sailed away decades ago. He is his own man (boy in his mind) and some things are not negotiable.
Not that it’s anyone’s business, but he has insisted that he is 19 for the last 16 years and I will kick your ass if you argue with him about that. He gets very upset when anyone calls him a man. He knows that he is different and prefers to think that it is his age and not his ability. You gotta love that!
He is most fond of landscapes. The more indistinguishable the better. He occasionally paints something more recognizable, like his own photo of the cranes at the port of Oakland, which is hanging in my mancave right in front of me as I write, but he definitely prefers rather nondescript images.