If I pause a movie and take a picture of that particular frame and then make a painting "based" off of the image is it infringe?

The following is not legal advice and should not be relied on to take or refrain from taking any action.

I respectfully disagree with Mr. Kaman. There is no "line" that clearly distinguishes which paintings infringe the copyright in a pre-existing work from those that do not.

Start from the premise that the copyright that attaches to one frame of movie containing literally hundreds of thousands of frames is quite weak -- though, granted, the "strength" of that copyright depends on the content of the particular frame (the copyright to a frame from Mission Impossible that shows only rocks and a sunset is far weaker than the copyright to a frame that shows Tom Cruise saving the movie's heroine). [ I know that legal purists will object to this way of framing the issue but sometimes succinctness justifies simplicity. ]

Then assume that a painting that identically copies that particular frame would be an infringement.

But then realize that as more creativity is applied to represent the frame's content the more the painting no longer serves to faithfully represent that content -- i.e., the purpose of the painting is to express an aesthetic message or value rather than representing the particular scene from the movie. The further the painting is along that creativity spectrum the more likely the painting does not infringe the copyright in the movie frame. In short, the "art" expressed by the creativity in the painting snuggles up to the First Amendment and is shielded from attack by copyright law. There is no test to determine how much creativity is "enough."

If you simply recreate the content of the movie frame faithfully and accurately then you will have copyright concerns (and will have only demonstrated your technical skill) . But if the movie frame serves as inspiration and you imbue your painting with creativity, then -- depending on how creative you get -- the resulting painting may be quite lawful. In that situation, your own attorney has to make that call.

I agree with Mr. Ballard. There really is no “bright line”.

Most artists are inspired by and base their work on the things that they see — whether it is another work of art or something found in nature. This is not forbidden by copyright.