You can sell a painting of someone else’s photo only if the photographer has given you permission, the photograph isn’t under copyright, or your use qualifies as fair use. That third path got much narrower after the Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith, which reshaped how courts treat commercial art made from photographs. Before you list a painting for sale, it’s worth knowing exactly where those lines fall.
The Photograph Is Almost Certainly Protected
Copyright attaches to a photograph the moment it’s taken. Federal law protects any original work fixed in tangible form, and photographs sit squarely inside the category of pictorial works. No notice, no watermark, and no registration is required for the copyright itself to exist. A phone snapshot has the same baseline protection as a studio portrait.
That protection gives the photographer exclusive control over reproducing the image, distributing it, displaying it, and — most relevant here — creating new works based on it.1Office of the Law Revision Counsel. 17 U.S. Code 106 – Exclusive Rights in Copyrighted Works A painting based on a photograph is exactly the kind of new work that right covers.
Why Painting from a Photo Can Be Infringement
Federal copyright law defines a “derivative work” as any work based on one or more preexisting works, including art reproductions, adaptations, and transformations.2Office of the Law Revision Counsel. 17 USC 101 – Definitions The U.S. Copyright Office specifically lists “a drawing based on a photograph” as an example of a derivative work.3U.S. Copyright Office. Circular 14 – Copyright in Derivative Works and Compilations Only the copyright holder can create derivative works or authorize others to do so.
Courts asking whether an unlicensed painting infringes look at whether it’s “substantially similar” to the photograph. The two don’t have to be identical. If a reasonable viewer would recognize the painting as being based on the photo, that’s usually enough. The protection runs to the photographer’s creative choices: composition, lighting, subject positioning, framing. Painting the same person in the same pose isn’t infringement on its own. Painting them in a way that clearly replicates how a specific photographer captured that pose likely is.
Changing the medium doesn’t insulate you. Neither does flipping the image, altering colors, or cropping. If the photographer’s expressive choices come through in your painting, a court can still find infringement.
What the Warhol Decision Changed
For a long time, artists relied on the idea that adding enough new expression, meaning, or style to a reference photo would make the resulting work “transformative” and qualify as fair use. The Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith raised that bar substantially.
The case involved Andy Warhol’s silk-screen portraits of the musician Prince, based on a photograph taken by Lynn Goldsmith. When the Warhol Foundation licensed one of those portraits to a magazine for the same purpose the original photo served — illustrating an article about Prince — the Court held that the first fair use factor weighed against the Foundation.4Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023)
The takeaway for anyone selling art: adding new expression or artistic meaning is not enough by itself to make a use fair. When the new work serves the same commercial purpose as the original, the fact that it looks different won’t save it. The Court emphasized that the degree of transformation has to go beyond what merely qualifies a work as a derivative; otherwise the fair use doctrine would swallow the copyright holder’s exclusive right to prepare derivatives.4Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023)
If you paint from someone’s photo and sell the painting for a purpose that photo could also serve — portrait, wall art, magazine illustration — the commercial overlap alone makes a fair use defense hard to win.
When Fair Use Might Still Apply
Fair use is still available, but it’s a four-factor balancing test with no bright-line rules and wide judicial discretion.5U.S. Copyright Office. U.S. Copyright Office Fair Use Index – Section: About Fair Use Section 107 of the Copyright Act sets out the four factors courts weigh:6Office of the Law Revision Counsel. 17 U.S. Code 107 – Limitations on Exclusive Rights: Fair Use
- Purpose and character of the use. Does the painting have a genuinely different purpose from the photo, and is it commercial? After Warhol, a commercial painting that functions the same way as its source photo faces an uphill fight here. Commentary, criticism, education, and parody sit on firmer ground than decorative art.
- Nature of the original. A documentary or factual photograph gives you more room than a carefully staged, artistically composed one.
- Amount used. Copying the whole composition weighs against fair use. Using a small element, or something that isn’t the most distinctive feature of the photograph, weighs in your favor.
- Market effect. If your painting could substitute for the original or undercut the photographer’s licensing market, this factor cuts hard against you.
No single factor decides the case. But for commercial artists after Warhol, the first and fourth factors carry particular weight. The strongest fair use arguments involve works whose purpose genuinely differs from the photo’s, not works that just look different while doing the same job.
Safe Ways to Sell a Painting Based on a Photo
Get a License from the Photographer
The cleanest route is to ask. A license is a written agreement in which the photographer grants you the right to paint from their image, usually specifying how you can use the resulting work, for how long, and what you owe in return. Put it in writing. An email exchange confirming the terms is workable; a formal license is better. Verbal permission is hard to prove once a dispute starts.
Use Public Domain and Creative Commons Photos
Photographs whose copyright has expired are in the public domain and free to use for any purpose. In the United States, works published before 1929 are in the public domain. Works produced by federal employees in the course of their duties are also uncopyrighted.
Creative Commons licenses are another option, but the specific license type matters. A CC BY license lets you adapt the work for any purpose, including commercial use, as long as you credit the photographer. A CC BY-SA license adds a requirement that your painting be shared under the same terms. Any license with an “ND” (NoDerivatives) element — CC BY-ND or CC BY-NC-ND — explicitly forbids adaptations, meaning you cannot paint from those photos.7Creative Commons. About CC Licenses Any license with an “NC” (NonCommercial) element bars you from selling the resulting work. Read the license before you paint.
Shoot Your Own Reference Photos
The most legally bulletproof approach is to work from photographs you took yourself. When you’re both the photographer and the painter, there’s no copyright conflict. If an existing photo inspires you, treat it as a loose starting point and then arrange and photograph your own version, with your own composition, lighting, and subject posing. The point is to make sure your painting reflects your photographic choices, not someone else’s.
Likeness Rights Are a Separate Problem
Copyright isn’t the only concern. If the person in the photo is recognizable in your painting, you may also face a right of publicity claim. More than half of U.S. states recognize this right, which gives individuals control over the commercial use of their name, image, and likeness. Selling a painting of a recognizable person without their consent can violate these laws even if you’ve cleared every copyright issue with the photographer.
Many states carve out exceptions for fine art and other creative works, but the exceptions have limits and vary by state. A painting sold as fine art in a gallery is more likely to fit within the exception than the same image printed on T-shirts and mugs. For portraits of celebrities or other public figures you plan to sell, getting a release from the subject or their estate is the most reliable protection.
What Happens If You Sell an Infringing Painting
Takedowns and Cease-and-Desist Letters
The most common consequence isn’t a lawsuit. It’s a letter or a takedown. If you sell online, the photographer can submit a DMCA takedown notice, and the platform is legally required to remove your listing promptly once notified.8Office of the Law Revision Counsel. 17 U.S. Code 512 – Limitations on Liability Relating to Material Online You can file a counter-notice if you think the takedown was wrong, but the listing stays down while the dispute plays out, and repeated takedowns can cost you your selling account.
Monetary Damages
If the photographer sues and wins, the court can award actual damages or statutory damages. Actual damages cover the profits you made on the painting plus any harm to the photographer. For a single painting, that number can be modest, which is why statutory damages matter.
Statutory damages range from $750 to $30,000 per infringed work, with the exact figure at the court’s discretion. If the court finds the infringement was willful — meaning you knew the photo was copyrighted and copied it anyway — damages can reach $150,000 per work.9Office of the Law Revision Counsel. 17 U.S. Code 504 – Remedies for Infringement: Damages and Profits That’s per photograph copied, not per painting sold.
Statutory damages and attorney’s fees are only on the table if the photographer registered the copyright before the infringement began, or within three months of the photo’s first publication.10Office of the Law Revision Counsel. 17 USC 412 – Registration as Prerequisite to Certain Remedies for Infringement Without timely registration, the photographer is limited to actual damages and profits, which often makes suing financially impractical. You won’t know which situation you’re in until you’re already in it.
Attorney’s Fees
Courts have discretion to award reasonable attorney’s fees to the winning party in a copyright case.11Office of the Law Revision Counsel. 17 U.S. Code 505 – Remedies for Infringement: Costs and Attorney’s Fees This is where the numbers get serious. Even when statutory damages sit on the lower end, fees in intellectual property litigation can far exceed the damages award.
How Long the Photographer Has to Sue
A photographer has three years from the date the claim accrues to file a civil lawsuit.12Office of the Law Revision Counsel. 17 USC 507 – Limitations on Actions The clock typically starts when the photographer discovers or reasonably should have discovered the infringing painting. Because artwork can circulate online for years, a painting you made a long time ago can still generate a fresh claim once the photographer finds it.