Art portraits are protected by copyright law.
Although many copyright issues are clear, in cases between artists and those who purchase or commission their art, things become a little more complicated. Artists and patrons need to understand copyright issues from the beginning of any project or purchase to avoid problems that may arise later on from the sale or reproduction of the work.
Art Copyright Basics
Any artist who creates an original work is automatically granted copyright protection that enables him to seek remuneration for actual damages that arise from unauthorized reproduction. Artists who register their portraits with the U.S. Copyright Office receive additional copyright protection, including the ability to seek punitive damages for up to $100,000 for copyright violations. In many cases, purchasing a piece of art doesn't transfer copyrights to the owner unless rights are specifically negotiated in the sale.
Work for Hire
An artist who is hired to paint or photograph a subject for a portrait is making a work for hire. Under these conditions, the copyright is owned by the commissioning party, who may then use the portrait in any context. Some photography studios and painters negotiate ownership of rights before the project begins so they retain copyright on the work after it's produced. To retain copyrights on work-for-hire portraits, artists should delineate the rights granted by the scope of the work in a contract before beginning the work.
Art Portraits
Artists who use models to create uncommissioned portraits or as fine art maintain the copyright to their pieces. In most cases, purchasing these works of art doesn't transfer ownership of copyright of the painting to its owner. Owners of portraits purchased from an artist may not use the work in a commercial setting without permission of the painter or photographer, unless at the time of purchase, they secured copyright rights from its creator in writing.
Length of Copyright Protection
Portraits created after 1978 are copyright protected for 70 years after the artist's death, while work for hire agreements maintain copyright protection for 95 years from publication, which in the case of portraiture, is usually the date the client took possession of the portrait.
