Copyright Aid

Firstly a summary:

A daughter of a friend has recently started a business where she creates a graphic image from a photo supplied by her client. Usually her portraits are of pets but in my case I commissioned her to produce an image of my stillborn baby.

I have ordered two prints from her and in addition I asked her if she could provide me with a digital png file so that I could add the photo on Facebook and also on my pc desktop. She replied to say that she will do this but her watermark will be across all digital images because she wants to protect her copyright. Understandably, I'm not entirely happy about this.


Secondly, my questions:

I understand that she owns the copyright on her graphical image. So I assume that it would be against the law for me to scan the print into my computer. (not that she would necessarily know this, of course!)

However, I own the copyright of the photo and gave her permission to create the graphics image using it. The image is an almost identical likeness to the photo, with the exception that she has improved my baby's skin tone considerably.

Because she used my photo to create the image, does she now have limitations as to how she can use the image? For example, I have not given permission for her to use the image for marketing purposes or for her to sell prints of the image to a third party (not that the latter is likely given the subject matter). Or does she have exclusive rights for the image and can use and reproduce it however she likes?

She sells prints of other commissioned works (all animals) online and these too are copies of photos provided by her clients. Just wondered where she stands legally on this too.

Thank you for reading. Please don't hesitate to ask me for more information should you need it.

p.s. we're both in the UK.

Hi popupzoo,
Unless you negotiate to buy the copyright at the time you placed your commission, the copyright in the artwork remains with the artist, even though hers may be a work derived from yours (the photo). However you have an implied licence to use the graphic work she produced for you and she cannot object unless your use goes far beyond what she understood to be you intention. For example if the manager of a band commissions a photographer to do some publicity shots of the band, saying they are to promote their next gig, there would be no implied licence for the manager to use the images for something completely different, such as, say, for an album cover, which would probably require an additional licence.
It is a shame that the artist insists on the watermark, but I think that she is within her rights to wish to retain this. As for scanning the pictures she has produced, this would undoubtedly infringe her copyright so I would advise against doing that without first seeking permission, especially if you intended to post the scanned image somewhere where she is likely to find it later, such as a Facebook gallery.
If the work you commissioned had been a photograph for private and domestic purposes, which I suggest would have been the case given the sensitivity of the subject matter, then the artist would have been prevented from making her photograph available to the public without your permission. Unfortunately this provision does not include artistic works, although morally speaking I think it should in this case. So apart from appealing to her good nature, I'm afraid there is no legal reason preventing her exploiting her work, even though it is based on your original photograph, unless it could be claimed that her work treats yours in a derogatory fashion - which I assume is not the case since you wish to use it on your Facebook page, and presumably to display the prints within your home.
With the benefit of hindsight, it might have been useful to stipulate before handing over your photo that you did not wish her to use her graphic work for any other purpose than for you. This then would have become an explicit licence governing the terms on which she was authorised to copy your photo, and she would be liable if she breached that stipulation.

Thank you for your quick and very informative reply. It is interesting and sad that artistic works are treated differently to photographs.

I did appeal to her earlier about the watermark issue and she has literally just replied back to me to advise that in my case she will make an exception providing that I purchase any future prints from her.

I asked her for two files. One without the watermark for my own personal use and one with the watermark for use on the Sands and public craft forums that I use.

Ultimately, I think she realised that if she refused to provide the image without the watermark she would lose out on the free publicity that I have promised her. After all there is a limit to the number of prints that I will want to buy.

By the way, had I decided to scan the image into my computer then no way would I have uploaded it publicly on Facebook. That would just be asking for trouble! It would have been hidden away in a private album instead.

Forgot to add... although I didn't give her permission to use the image, this isn't a problem. Though I was hoping she'd need my permission as I would have withheld it had she continued to be awkward about the watermark. As things stand, all is well but I know to be wary the next time I commission anything similar.