My recent post Do you need permission to use someone’s likeness in art? generated more comments (and controversy) than any other article in the brief history of the blog. I appreciated all of the feedback and discussion. Several of you made comments to the effect of “Jason, it’s not helpful to hear what people think, we want to know the right answer,” and “Jason, this is a legal issue with a right and wrong answer.” This last one makes me smile a little because, in my experience, if you get two attorneys in a room you can get very different opinions about right and wrong on any particular issue (isn’t that the whole reason we have a court system?). That said, however, I do appreciate the desire to have a more authoritative response, and so I requested an opinion from a good friend of mine, Jim Reed, an attorney with extensive arts and entertainment law and intellectual property law experience.
Below is Jim’s response. Jim is extremely busy with his practice, so I appreciate his willingness to take the time to share his thoughts. If you have additional thoughts, post below.
If they are out in public, you have a right to replicate their conduct in public. If they are on a horse at a show and you accurately paint them on that horse, you are ok. The question is whether you can sell the photo or painting for money. I think clearly you can as long as you stay true to the image.
If you use their likeness in a way that was not used in public, i.e., the horseback rider eating an ice cream cone, whether to sell ice cream or to sell your painting of them eating ice cream, then it is an unauthorized commercial use of their likeness in unintended ways. When you are in public, the way you present yourself in public is considered intended and authorized for use.
And if you stay true to the image but use it to endorse a product, such as a horseback rider but on a carton of ice cream, again, that is a use for unintended purposes.
This article obliquely makes the point. No one authorized their picture being taken as they looked at the towers. One could argue that each person in the photograph was nondominant, but TMZ airs video footage all the time in public places, but they never track someone into a private location. Likely some of the best defamation and privacy lawyers in the business advise TMZ.
There is probably no difference between a photo and a painting. The stir over the HOPE painting of Barack Obama was that the painting was taken directly from an AP-copyrighted image. If the painter Shepard Fairey had AP’s permission to use the image, no dispute would remain. Obama had no right to challenge it, he was at a public event at the time of the photo. http://www.openculture.com/2009/02/the_obama_hope_poster_the_new_copyright_controversy.html
The public space concept is important. If you are painting someone when they are in their backyard, there is an expectation of privacy that courts will probably protect. If they walk out of their backyard, different story. I had a client’s documentary “Banking on Heaven” air on Oprah and Nightline and elsewhere related to polygamy in Colorado City. That was my advice to the documentary filmmaker – in the public spaces, ok, at home or similarly private, blur the face. http://www.imdb.com/title/tt0482460/fullcredits#cast <http://www.imdb.com/title/tt0482460/fullcredits#cast>
The safest thing to do is to get a release. And in the absence of a release, the next safest thing is to change the distinguishing features in the painting, or if those distinctions make the painting, then diffuse the dominant image with other people in the painting. Because as much as you are probably safe legally, no one wants a lawsuit. You won’t recover your attorney fees for defending it, no matter what your lawyer tells you.
Attorney, Baird Williams and Greer LLP
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In his Amazon.com best-selling book, Xanadu Gallery owner Jason Horejs shares insights gained over a life-time in the art business.