Hi, I am a 61 year old retired grandmother and artist. I have been using images from the internet, dance images, to paint oil paintings on canvas. Over the years, I've been inspired by a photographer who took many photos of dancers moving through space, in Black and White. I used these photos as studies and subjects in some of my paintings because it is simply impossible to get people to pose in space or flight, frozen in time, for me to adequately capture their body language and positions twisting through space. Now I've just received a law suite indicating that I infringed upon the photographers copyright photos and they are seeking damages of $150,000 for each of the photographers 91 of my paintings, or they will settle out of court if I send them $450,000 in damages. Seeking your advice. Jill Pankey, San Marcos, TX
Hello, I will be assisting you.
Copyright law affords the copyright holder exclusive rights as to their copyrights this includes creating derivative works such as painting making a painting out of a photograph. Under certain circumstances if the derivative work is also considered transformative then you are longer considered an infringer. If your paintings merely copied the photograph then the chances is that the work will be considered derivative and not transformative. However if you created truly unique paintings that use the photographs only for inspiration then your work may be considered transformative and you would have a defense under the fair use doctrine.
Another issue involves the commercial use of your paintings. If you have been selling the paintings then your fair-use defense would be lessened. However if the paintings have been created for art's sake then you may have a fair-use and first amendments defenses.
As you can see the analysis involves a detailed examination of the paintings and what was their use.
If you have received a summons and compliant (i.e. you were actually sued) then you MUST retain an attorney immediately because you have a limited time to answer that summon and complaint or risk a default judgment on any of their unreasonable demands. If however you just received a demand letter then you have not been sued yet. In such a case it is still highly recommended that you retain an attorney as soon as possible. The attorney will be able to explain to the other side that you likely don't have the means to pay off any judgments and their law suit will be just a waste of time. Often times such cases end up either in settlement involving much much smaller amounts or in the plaintiff abandoning the case.
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This is a great response. Thank you for your consideration.
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