Legal Question in Intellectual Property in Tennessee

Can you tell me if it is illegal to paint a canvas from a photograph I found on the internet? I live in Tennessee. I have read a lot about this and to me it is confusing. I always interpret my paintings in a different way than the actual photo, although they do have similarities. I would like to sell my paintings, but to individuals, not mass production.

Asked on 8/03/11, 7:33 am

1 Answer from Attorneys

Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I can advise you as follows. The test for copyright infringement is substantial similarity. Proving substantial similarity involves a two part test - extrinsic similarity and intrinsic similarity. The extrinsic test is objective in nature and just requires identifying specific criteria which are alleged to have been copied. In your case, that would most likely be the basic subject and underlying features of the photo vs. the painting. The intrinsic test looks at an ordinary personís subjective impression of the similarities between the two works. That is, would an ordinary person think thy are substantially similar. The second test is the exclusive province of the jury in a copyright infringement case. As the penalties for copyright infringement are substantial, you really need to consult with a good intellectual property or franchise attorney in your area for specific advice about how much you would need to change and your potential liability for what you intend.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 8/03/11, 8:19 am

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