[Michael Fournier]

Well, I actually cover this in the model release form for non-portraits; for portraits, I have a section in the contract that deals with this.

For portraits, it states that the images will be used for no purpose other than to serve as reference for the painting commissioned. This protects the person from me using their likeness in anything other than the work agreed to. It also states that the images are my property and not theirs. I do not sell photographs nor do I intend to. Most of the time the person who commissions a portrait does not see the photos because I submit a sketch for approval, not the photos. Although I work from photos almost all the time to complete a painting, and take photos during the first sitting for my own reference, I work with the client as if I was working from life only. That way there is no issue of them wanting the photos. Also I have a section in the contract that covers me using the image of the finished painting for my own promotion. They may check a check box if they disagree with this use but most of my clients were more then happy to allow this.

As for photos I take of models for illustration, the model release form I use allows me to use their image for as many illustrations as I want, as well as for their likeness to be reproduced in whatever publication it may end up in. This is a necessity since the clients who buy the rights to reproduce my illustration do not want to further deal with model release forms.

Also as an illustrator, I have what is known as a morgue, which basically is a filing cabinet full of both original photo references I have taken, as well as photographic reference I have obtained the rights of reproduction on, and magazine clippings and all kinds of images I might use as a reference for an illustration. For images I don't have rights to, at first whenever needed, I would contact the publisher if, for example, it was originally a magazine clipping, to find out if my use is within fair usage. And if they or the photographer have the rights. Many times magazines either buy full rights or own the rights because the photographer was a salaried employee. Other times they do not like when a freelance photographer sold only first-time rights. Also photos of public figures like the President, or of landmarks can for the most part be used as reference without much issue but sometimes it is best to check first. Images shot of a person or persons at a public event or in a crowd may be used with out a model release form for the most part.

If you single out a person it is sometimes best to just ask their permission, and later if you use it, you at least have a verbal agreement. A lot of times I may use a photo for reference but have changed it so much and the final image so removed from the original, that reproduction rights are not a issue. For example, if I used an image of a piano as reference so I could draw one convincingly for a illustration, but the final image is of a piano from a different perspective and with different lighting, this would not be an issue. After all, the photographer does not own the rights to all pianos. Well, that covers how I handle reference photos of all kinds. Bottom line is your reference photos are just that - reference photos and are yours. You really don't want the person comparing your painting to the photo anyway and they will if you give them both. It is best for them to be looking at your painting as an image of the person and comparing it to them in life not an image from a camera. And if you did your job well, your clients will be happy with that.

As I have said in previous posts, although I may work from photos I never paint exactly what is in the photo. Your client may not understand that the finished portrait was never intended to look like the photo. Giving them the photo just complicates that.