Painting from published photographs

This topic has probably come up before and I apologize if it has been done to death in the past, but can someone give me their understanding as to what current opinion and practice is concerning the legitimate use of copyrighted photographs?. If there is a FAQ on this subject, please point me to it. In addition to the bare legal aspects of this subject, I would like to hear arguments for various positions taken.

Here is what I am concerned with: It seems to me that making a painting based on a copyrighted photograph is not the same thing as reproducing a photograph by mechanical means, say, with a scanner and is not a violation of the image's copyright holder. I'm not talking here about photo realism (although comments relevant to this are also welcome); I'm thinking along the lines of a painting, say, in an impressionistic style, perhaps with departures in hue, value, and intensity from those in the photograph, that is clearly not meant to duplicate the photograph in any detailed way, but which is based on the photograph and recognizable as such to anyone familiar with the photograph. Some specific questions:

(1) What exactly is it in a photograph that is protected by copyright?

(2) What can one say about a painting based on a copyrighted photograph of a scene that is accessible to the painter from which to make his own photograph under identical circumstances of lighting, etc., in such a way as to be almost indistinguishable from the published photograph.?

(3) In (2) above, is there a violation of copyright if the painting is made from such a photograph ? How would anyone know which the painter painted from

Well, I am new Here, But it seems to me that the subject of the Photo is in no way Copyrighted, But the framing, Light, composistion and even that particular Moment in time IS Copyrighted. That being said I think there are very few 'literalists' among us painters, and we (atleast I) use Photographs as Inspirations to paint the work. Thus it is Our 'impression' (no mater how abstract or cubist we are) of the original that ends up on the canvas. The original remains intact and was not reproduced. Simply interpreted. thats My thought at anyrate.

From the typical newbie standpoint... Student of Painting, Beginner extrodinaire :o)

says...

You would be wrong. The courts have already decided on this issue. A good case to refer to is the one where Jeff Koons lost on appeal when he created a sculpture of 'puppies' using someone else's photograph as his reference.

On the other hand, if you want to risk being sued you can take a chance that you'll never be discovered or if you are you won't be sued or the jury in your case will decide in your favor.

There is a ton or artwork out there, including some of my own, that uses famous artists/art works in a parodic manner. The problem arises when you 'copy' the other artist's work in too literal a fashion. As in Jeff Koons case, he created a three dimensional sculpture but the subject was so much like the photograph that the photographer was able to make his case. The fact that Jeff Koons was at his peak at the time made him a target ripe for being sued