Commissioning a Portrait: Sittings, Likeness and Rights

Every portraitist interprets. Some flatter, some are unsparing, and some care more about paint than resemblance. There is no neutral likeness, only the artist's version of the sitter, so the choice of artist is largely a choice of how the sitter wants to be seen.

Practical fit matters as much as style. The scale and medium should suit the room where the portrait will hang, and the artist's usual formats should match what the client has in mind. A painter who works best on an intimate scale may not be the right choice for a large formal portrait, and a portrait of someone who has died, painted from photographs, calls for an artist comfortable working that way.

The best evidence is a body of commissioned work, not only exhibition pieces. Look at portraits of people the client has never met and ask whether each reads as a specific individual. Look at how the artist handles hands, age and expression, and whether sitters of different ages and backgrounds are treated with equal care. Where the artist agrees, speaking to previous sitters about the process is often more revealing than the finished pictures.

Artists work very differently. Some want many sittings from life; others combine a short sitting with extensive photography; some work from photographs alone. None of these is wrong, but the sitter needs to know which they are agreeing to, how much of their time it will take, and where sittings will happen.

Sittings are more tiring than most sitters expect, and the arrangements should reflect who is sitting. Children, elderly sitters and busy executives all need different planning, and group or family portraits add the problem of assembling everyone at once, which is one reason many artists supplement sittings with photography.

Progress views are worth agreeing in advance. A sketch or compositional study at the start gives the client a chance to raise concerns while changes are still easy. Deadlines deserve care too: if the portrait is for an anniversary, an institution or an unveiling, the date should be realistic and written down.

A written commission agreement should cover:

• Size, medium and general composition, including setting and clothing
• Price, payment stages and what happens to deposits if either side withdraws
• The number of sittings, or the use of photographs and who takes them
• Points at which the client sees work in progress
• How concerns about likeness will be raised and resolved
• Delivery date, framing, shipping and insurance while the work is in the studio
• Ownership of studies, sketches and reference photographs

This is the clause most clients skip and most regret skipping. Agreements tend to take one of a few approaches: the artist keeps final artistic discretion and the client accepts the result; the client approves at an early stage and then accepts; or the client may decline the finished work, with the artist keeping the deposit or part of the fee. Each has trade-offs, and many established portraitists will only work on certain terms.

An advisor helps most before this point, by matching client and artist carefully and by setting expectations about interpretation. If concerns do arise, the advisor can relay them in terms an artist can act on: specific observations about features or expression rather than a general sense that something is wrong.

Delivery has its own details. Oil paintings are commonly varnished some time after completion, so the agreement can provide for the artist to return and varnish later. The client should also receive a written record of the materials used, the date of completion and any care instructions, which becomes part of the portrait's documentation.

Owning a commissioned portrait does not normally mean owning its copyright. In the United States, copyright generally stays with the artist unless it is transferred by a written, signed document. The work-made-for-hire rules that can give copyright to the commissioning party are narrow: they cover works by employees within the scope of their employment, and specially commissioned works only in certain listed categories with a signed agreement. A commissioned painted portrait generally falls outside them.

Other jurisdictions have their own rules, often with a similar default in the artist's favour, so local legal advice is essential. In practice the owner can display and sell the painting, but reproducing it on cards, in books or online may need the artist's permission. The simplest answer is a written licence covering the uses the family expects.

Portrait rights run in the other direction too. The artist may want to exhibit the portrait, enter it for prizes or publish images of it; the sitter may prefer privacy. The sitter's rights over their own image vary by jurisdiction, so it is better to agree these uses in the contract than to rely on the law. Some jurisdictions also give artists moral rights, such as the right to be credited and to object to distortion or, in some cases, destruction of the work, which matters if the family later wants to alter or dispose of the portrait.