Who owns a commissioned portrait?

Physical object versus copyright are two separate things

When a client commissions a portrait, they are buying a physical canvas or print. Ownership of that object does not carry copyright with it. The person who created the image, the painter or photographer, holds the copyright unless a written document transfers it.

This surprises a lot of clients, who assume paying the invoice buys everything. It buys the object and, usually by implication, the right to hang it and photograph it for personal use. It does not buy the right to print it on merchandise, license it, or reproduce it commercially without the artist's consent.

The clause that actually settles it

A commission agreement should state plainly whether copyright is assigned or licensed, and if licensed, for what uses. An assignment clause reading 'the artist assigns all copyright in the portrait to the client' transfers ownership outright. A licence clause instead lists permitted uses, such as personal display and family reproduction, while the artist keeps copyright and the right to include the work in a portfolio.

Without either clause, default law controls, and default law favours the artist. If you are the client and want full rights, negotiate an assignment before you pay. If you are the artist and want to keep your portfolio rights, put a licence clause in writing rather than relying on silence.

Family and estate portraits

For historic or inherited portraits with no surviving contract, chain of title becomes a matter of estate records and correspondence rather than a single document. If the artist has been dead for more than the relevant copyright term, which is typically life plus 70 years in the US and EU, the portrait falls into the public domain regardless of who owns the physical piece.

Work for hire does not usually apply here

In the US, work for hire status requires either an employee relationship or one of nine specific categories of commissioned work under a signed work for hire agreement, and portraiture is not automatically one of those categories. So an independent portrait artist is not a work for hire creator by default, and the client needs an actual assignment to own the copyright.

WHAT TO DO

1. 01Put ownership terms in writing before the sitting or the payment.
2. 02Choose an explicit assignment clause if the client needs full commercial rights.
3. 03Choose a licence clause listing permitted uses if the artist wants to retain copyright.
4. 04Keep the signed commission agreement with the delivered portrait as chain of title evidence.
5. 05Mint a Deed for the commission agreement so both sides have a signed, verifiable record of who owns what.