Sampling--for painters. What are we to think of a painter who paints from someone else's photos? Should a key point be that the photographer is not purveying his photos as art but is a photojournalist? Should it matter that the painter is selecting parts of the photographs and adding new elements and painting in a painterly not a photo-realist style? Should it matter that the photo is 30 years old?

I'm a lawprof not a copyright lawprof, so I'm just offering the usual array of lawprof-y questions and not an opinion on copyright law. Yet I can't help feeling sympathy for the artist. I often do a freeze frame on the TV--another reason to have a TiVo--and do a drawing. Here, it seems to make a difference whether I'm drawing from a news or talk show, which is casually performed and photographed, and a fiction show or movie, which is an artist's work. Let's say I freeze frames from a beautifully photographed film from 30 years ago, like Taxi Driver, and make a series of large paintings. I don't see how I could sell that. But then, if I find segments within the frame, discovering compositions that are in some way mine (but in some way not), and if painted them on a different scale and in a painterly style, so that the original film couldn't even be perceived--well, that seems entirely different to me. What if I don't bother to paint them but just extract them from a DVD and fool around cropping and redoing the image in the computer? Though I don't imagine copyright law has much to do with the fact that the second work of art may have taken far more effort than the one it is appropriating, it's hard not to side with the painter against the photographer. The artistic photo-manipulator--like Meghan on The Apprentice last week--seems to be another matter entirely.