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What would you do? Do you need permission to use someone’s likeness in art?

Disclaimer: This post touches on issues that may be legal in nature. This blog does not offer nor claim to offer legal advice. If you have questions on this issue please seek qualified legal counsel. Blah, blah, blah, etc. etc.

[UPDATE: Be sure and read the opinion of an arts and entertainment attorney who weighed in on the issue. James Reed’s Post]

Not too long ago I received an email from an artist raising the issue of whether or not he needed someone’s permission to use their likeness in his art. I am going to admit that I hadn’t put a lot of thought into this issue previously, but poking around on the internet I found a lot of discussion centered on the topic. Much of it was convoluted and contradictory, so I thought I would post the conversation I had with the artist and ask for your opinion. I include below the original message from the artist (names and key identifying details have been removed to protect the innocent).

Leave your comments below in the comment area. Please note that comments are moderated so it may take a while for your comment to appear. Also, please note that I only permit civil discussion on the blog. I encourage forceful points, and if you vehemently disagree with someone’s opinion, please feel free to express your point of view. Just don’t make it personal and don’t use foul language (you know who you are).

Original Message:

Jason,

I hope all is well with you, your family and business.

Maybe you could supply an opinion on this.

I have a show this month at XXXXXXX in XXXXXXX. Because it is in the heart of horse country I thought I would do an equestrian portrait sample. I took a lot of photos at the XXXXXXXXXXX show and I picked reference to paint from that I thought could pull some portrait business from the horsey set.

I had a reception last night and a friend who paints western watercolors thought I should have permission to use the young lady’s image.

From the number on the horse blanket, cross referenced with the event catalog, my wife was able to find out who it is and who owns the horse. What do you think? I painted the 40×30″ portrait from a photo I took at a public event, which had several photographers present.

I am using it on my portrait brochure and probably will use in advertising.

Regards,

XXXXXXXXX

My Initial Response:

I am going to admit that you’ve got me stumped on this one. My first reaction is that in an ideal world this wouldn’t be a problem. It’s not as if you are invading privacy – the figure in question was at a very public event after all. Unfortunately we don’t live in an ideal world and I suspect the issue could be more complicated that just privacy. I found an interesting article on the topic on Professional Artist’s website that makes some arguments against using an identifiable image if at all possible: http://orders.professionalartistmag.com/article.asp?ID=73.

Chances are it would never be a problem, but sometimes it’s better to play it safe than sorry. Would it be possible to modify the piece to change the number in order to make anonymous the figure in question?

Jason

Artist’s Response:

Jason,

Thanks for weighing in on this.

It isn’t a very clear cut situation.

I did leave the number off the horse blanket so it isn’t over literal.

I’ll read the article.

Regards,

XXXXXXX

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