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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157 Comments

  1. Most of the time I paint using photo imagery as a reference. I generally take the source pix myself, but recently a friend sent me an image that he found on the internet he thought would fit within my work and I must admit, it’s a compelling composition and something I’d definitely consider painting. I tracked down the owner on flickr and told him what I was about and permission from his was no problemo. Since I have an e-mail trail and was upfront with my intentions, I feel there’s no copyright issue and that I’m safely covered. In your case, since the painting is already finished, why not pop the owner of the horse a message that says: “Hey, I was at the show and was taken with what a lovely image you and your horse made and decided to make a painting of it. Thought you might want to see it.”? If she raises a stink, don’t sell the painting. The only time copyright would be an issue is if you were trying to get rich off someone else’s efforts without their permission. My bet would be that she’ll be VERY flattered and there’d be no issue at all. And who knows, she might even want to buy the piece and tell all her horsey set that you made her famous. And then all her friends will line up for you to paint them too. Good luck!

  2. Which brings up another point. If you’d need permission to paint every image you take a photo of (or even from everything you shoot), would a landlord of a building have a cse to sue a photographer for including his building in a cityscape? ;-))

    1. I asked permission to draw from a photo lately. Was granted permission and offered to send photographer a print of my original work. Referenced photographer in my posts on social media also. Nothing was said until I put up the final drawing for sale.
      The photographer then threatened me with copyright infringement and to remove the post. Said I needed a royalties contract.
      I was mortified and taken aback and offered to set up a royalties contract if that’s what they wanted. I stated that I wish they had informed me of this when I asked for permission.
      She then said I have used an app to turn her photo in to a drawing. Which I was highly offended at but stayed professional. And has refused to take me up on royalties contract.
      I have completely wasted my time drawing it and I am unsure of my rights. Can anyone advise? Thanks in advance

  3. One way to use the image is to change the face a bit, just change the face by making her face thinner or heavier, change the color of the hair or the color of her outfit, this should be enough to avoid the problem. I am torn over this issue, as an artist I want to use the images I photograph without getting a release, especially at a festival. Aleada

  4. This is very timely for me as I just began a series of portraits based on mugshots. I consulted the Colorado Volunteer Lawyers for the Arts and was given the following comment. The images were obtained using the Federal Freedom of Information Act and are public record. If I were taking the images and printing them on t-shirts etc., the person in the image might have a case. However, because I am using the images for inspiration, the final artwork is mine and the rights to it.
    I do not agree that you should change the person by making them fatter or thinner if this is not your style. My portraits are meant to be very detailed mosaics with a true likeness of the person. I wouldn’t want to change something.

  5. alone larsen
    My sis is an Intellectual Property Law Attorney in Chicago. I have asked her many questions and as you have found out it is complicated. But generally if you are using a picture of a living person you need their permission especially if you are going to show it or sell it. Not sure if they are dead if next of kin has a say. Remember the USPS only uses pics of dead people on their postage stamps and I think they have to be dead for a certain length of time before their pic can be used. You could change the face as they change names in writing to protect identies or what ever they call it. Vague, but this might help put you on the right track of inquiry………

  6. FACES, living or dead or not protected under copyright law; the photograph of a face may be covered by copyright if it was taken by someone other than yourself. There must be another reason why the sister in Intellectual property thinks it’s advisable to get a release/ permission. It may be a civil law reason but not a copy right reason.
    The simple approach would be to simply contact the person or her parents and tell them what happened. Ask for a release/ their permission. better to be safe, reasonable and nice than sorry.

  7. I can see two different issues arising out of this. One is a copyright issue which I do not think applies to images of people, possibly with the exception of celebrities as they have a financial interest in their likeness. The other issue has to do with privacy. A woman on a horse is not likely to be a big problem, but imagine you had candid photos of people at a coffee shop and you made a recognizable painting of a couple holding hands. What if you put it in a show or a publication … and what if those people were married to other people. BIG problem. That is an extreme example, but there is always the question of whether or not any individual wants to be portrayed recognizably in a public venue. The horse show, like the coffee shop, is a public venue but you are taking the image to a much wider audience. It seems to me that you should confer with the rider (the horse really won’t care). This also means that the problem of private property is not an issue. Buildings don’t have privacy rights.

  8. If I were you I’d contact the person you painted immediately. She may or may not like the idea of her image being used. Given that you are in the heart of horse country it seems likely that someone would recognize her and tell her; better that you contact her first. If she likes the image, you might consider offering her a giclee of the painting in exchange for being an unwitting model.

    Here’s another example of how quickly things of this nature can go awry:

    At one time I did illustration work for an annual music event. One year I was given photos (and permission to use them) from a previous event, taken by one of the volunteer photographers. We cropped one of these photos to show only a small portion of a musical instrument and part of the hand playing it, and altered the image significantly (or so we thought) with color and contrast. So, no facial features were depicted. However, the musician recognized his instrument and pitched a fit. He threatened to sue if we did not give him the artwork for use on his new album (clearly he was also somewhat flattered). The committee gave into the threat, gave the guy the artwork for free, which he did use on his album (with no credit for the artist) and forestalled the lawsuit. The committee also chose not to invite this musician to play at any future events.

  9. Been doing this for 55 years, 67 years old. I consider anything out there that does not say no trespassing, people, animals, buildings etc. Public Domain. And there for my pleasure.
    Copy write laws for the artist, forget it. A good property lawyer or copy write attorney want even take a visual artist case except to defend an artist being drug into the courts.
    That said, if I want to do someone in particular I ask. I’ve neverbeen refused.
    I’m working right now on a larger than life watercolor on Cheif Don Havatone, the Hualapai tribe chief who is the greeter at the Skybridge at the grand canyon. A beautiful native American. I walked up and asked him. He seemed honored I wanted to do him.”

  10. Years ago, when we owned a photography studio, I used to sell my photos on greeting cards as well as prints. My lawyer advised me to get a signed release from anyone who was prominent in any of the photos. He said taking the pictures was no problem, but using them for my own personal gain, without subject’s permission could be a very expensive exercise in who’s got the better lawyer. If you get taken to court over it, the costs could be so expensive that even if you win, you lose. Just some food for thought … Peace and Love …

  11. Funny I was just having a heated discussion on this same subject w some friends today. Look up “freedom of expression” and “right to privacy” and lawsuits together, the answer might be clearer. Things might be different depending on the country/jurisdiction, but in this scenario, since the artist took the source photo, US Copyright law wouldn’t be involved (btw, this month’s PDN had an article about it on Dylan @ Gagosian). If the person is famous you might have other issues under common law. Really best thing to do is to consult a lawyer in your jurisdiction as what’s kosher in chicago IL might not be in lexington KY. Disclaimer: not offering legal advice here – this is strictly academic discussion.

  12. I routinely collect model releases for my models. I take literal pictures in my studio of actual people, and proceed to design non-literal imagery out of their portraits for my Tarot series. I learned my lesson from a teacher, also a friend, years ago. I photographed her, then worked at a photo and frame shop, and used her image to sell our frames. She wasn’t happy at all! I took down her image, of course, but I felt it damaged our friendship.
    Since my models now are my friends, I ask for the model release up front, that gives me permission to use their image in my art, and to promote my art and my business. Then, in exchange I “pay” them, with a cd of all the original images and a copyright release that allows them to use them for their own purposes, AND, I give them a print of the final card design in the size of their choosing.

  13. I think that the general consensus is to ask the person, because you will be in the safe zone. Certainly most people will be flattered , but you could run into a very private person, whom doesn’t like the idea, in that case restraining yourself to use the likeness will show respect for others. In other words you will do to others what you would like others do for you.

  14. As long as the person is in a public place and it is your photo there is no problem using the photo for whatever purpose. If you take a photo of a person, without their permission in their home, you have violated their right to privacy.

    From the scenario you have described there is no problem using the photo however you choose.

  15. People in public cannot expect privacy rights thus if they are photographed they can not object. This applies to any persons. If the photographer takes pictures of children and reproduces them in a painting, unless the artist is extraordinary, their likeness can be considered altered, a look-a-like portrayal. Doing a portrait then consent written of course is good protection.

    Copyright last 75 years then it becomes public domain.

    An artists work is a created work, protected by the US Constitution. Until it becomes illegal to take pictures with cameras I guess I am amused by this discussion because the artist is protected by the first amendment the same as a reporter for freedom of expression.

    However, the 4th amendment does protect our privacy in our homes. So just make sure the pictures were taken in a public setting.

    Cheers!

  16. I am a figure painter and I’m never without a camera. These days I simply use my cell phone, from a distance. I’ve come to this because in the past when I have asked permission to photograph people (or their kids) they did one of 3 things; 1, they freak out. 2, they get stiff as a board or 3, they totally “ham” it up with big grins & unnatural poses.
    So now I don’t really want perfect photos, just enough to get the feel of the environment and the general position of the figures. I don’t strive for a true likeness in painting these urban scenes. Generally I just paint an elderly person to look like just any elderly person…a sexy woman is painted just like any sexy woman; it’s all in the gesture.
    If I’d like to do a true portrait of a specific individual that I notice in a public place, I flatter them a little and I give them my business card so they can check out my work on my website, see that I’m legitimate and finally call me. But I’m sorry to say no one has ever taken me up on it.
    So for detailed portrait & figure work, I use paid models in a studio setting.

  17. IMO, people in public places are fair game — or at least that was our stance when I assisted the direction of P.R. for Red Cross in L.A. several yrs. ago. A photo-journalist doesn’t get releases for pix run on the front pages of even the largest of metropolitan papers. This artist’s dilemma seems to be very similar.

    On the other hand, a dozen yrs. ago or so, I participated in a life-drawing class at a nearby college, and a draped model, who, by the way, was paid for her services, took exception to the way one student depicted her when her image appeared in a gallery show. When she took her complaint to the local newspaper, who gladly ran the story prominently in its next edition, the college wisely decreed that from thereonin, models would sign releases to allow artists freedom of expression. (Incidentally, that model never worked there again.)

    I probably sound like a fence-straddler, but I’m really not. Although there may be times when the gracious thing to do is to seek permission of the subject, in my opinion, this is not one of them.

  18. This is a very good question. My best friend years ago used to take amazing photos. Each time she took one of a person that she MIGHT use in a photo where they were prominent, she asked that a waiver be signed. It was a precaution on her part of any legal matters that may arise if the piece were to be sold. She never had a problem. If you are using a composite of photos to make up one image, which a lot of painters do, myself included, then I do not see the need for the waiver. In the case of a portrait, I think it is best to err on the side of caution and have the waivor.

  19. I do know from working in the licensed sports industry that cityscapes are copyrighted by the individual cities and should not be used with out their permission. I do not know if this pertains to all uses of the cityscape – other than licensed sports.

    I am really happy you are having this discussion. I wanted even as a child to do portraits and caricatures of famous people but did not pursue that until now (over 20 yrs later) because I thought I had to have permission form those people because of what I had read on the subject probably in artist magazine.

  20. I take many photos at public events such as historic reenactments, etc. I recently did a work of art from a photo that I took myself at one of these events, submitted it to a magazine, and had it published as the cover art for an issue. The publisher asked me if I knew who the 3 guys were in the artwork, to which I answered “no”, thinking this would ruin the deal. To my surprise, he just continued to tell me how much he like the art and was happy to use it for the cover the next month.
    From this interchange with him, I assumed that there were no copyright issues of which I should be concerned, and I was right. When the issue came out, the guys in the artwork recognized themselves, contacted me and wanted to purchase prints of the art. I’m still a struggling artist, and could not give them a print for free, but I did sell them each a print at my cost to show my appreciation to them for being my unwitting models. They even volunteered to be in future art creations of mine if I needed them.
    I do, when possible, ask permission and I’ve found that if they are performing at public events, most are more than eager to have their images used in a work of art. I do have a policy of my own now where I provide my models with a free print for their help. After all, we artist’s must protect our models who are willing to work for us for free.

  21. My understanding (admittedly, based on photography, not on painted portraiture) is that if the subject is a public figure, often photographed and publicized, it’s probably ok. Unless the subject is extremely protective of his image, as Frank Sinatra was, celebrities are often glad of the extra exposure and publicity. If it’s a private individual, on the other hand, public display of the subject’s readily identifiable image (“identifiable” being the operative word) could be considered breach of privacy, so the artist should try to obtain a release (which might even result in a sale!).

  22. This website has some interesting links on various copyright considerations: http://painting.about.com/od/copyrightforartistsfaq/Copyright_for_Artists_FAQ.htm For example they have a link to the topic at The American Society for Portrait Artists on Derivative Works And Copyright: http://www.asopa.com/publications/2000winter/law.htm
    US copyright basics can be found at http://www.copyright.gov/
    I’ve written an article on copyright infringement at http://www.squidoo.com/copyright-infringement (no, I’m not a lawyer and it isn’t to be considered as legal advice)

  23. According to iStockpjoto you need a name and release of all people in a selling photograph even if it is a crowd. It’s a different world. Who needs a lawsuit? Ask permission and carry a form. Maybe the subject will want to buy the painting.

  24. “Photographic works often are portraits of specific persons. They may, but need not necessarily be, commissioned by the portrayed persons. Many copyright laws contain provisions that require the author to get permission from the portrayed person when publishing the portrait.

    In case the portrait was not commissioned, e.g. a photo taken on the street, the portrayed person should demonstrate some likelihood of damage that can arise from the publication. A famous person could for instance argue that he normally charges for photos, and so the unauthorized portrait robs him of this income.”

    From http://www.iusmentis.com/copyright/crashcourse/limitations/

  25. There are two ‘use’ issues, art and commercial. Using a persons likeness as art may not be a problem. Putting that image in a brochure to further your business is a big problem. As a photographer I can photograph people all day long and use them for editorial work (newsworthy) or as fine art, no issue there. But if I don’t have a signed model’s release the images cannot be used for advertising or any type of commercial work.
    Since the intent was to ‘pull some portrait work from the horsey set’, his use is advertising and needs permission. Get it in writing.
    On another note, a lawyer/artist painted a picture of one of my wolf photos. He hung it in his home and there was not much I could do when I found out. But then he used it in his biz ad. Copyright infringement!

  26. I have worked as a free-lance commercial illustrator for many years and only for large advertising agencies or corporations. The rule was in illustrations: never depict anyone recognizable — the people in the illustration must look generic. No models were ever photographed unless they had a model’s release form signed in advance. The law has been that you can photograph someone, or you can paint someone but you cannot release that to the public or make profit from it unless you have their permission. The only exception when they didn’t need permission was if the person painted or photographed was a famous celebrity. But even then they never took that chance and always got the release form signed in advance even if they were a top celebrity. They did not want to get sued and also they wanted to preserve their reputation as an ethical company or advertising agency and keep their good reputation in this city. News media go by different rules. In my off times I am a fine arts painter. I take a lot of photos on location and come home and paint. I ALWAYS change the features/clothing/clothing colors of the people in my paintings a little till you would never recognize them as the same people that were in the photographs. The only time I do a portrait is when I am commissioned IN ADVANCE to do a portrait. My advice to the painter of the lady and horse: tell her about the painting and ask her permission to use it. It would have been a good idea to have made her look as just an attractive woman (generic) on a horse (different number) from the beginning. Also you have your reputation as an artist and should be considerate of others and their privacy no matter what is within your rights to do. Always get permission first.

  27. First I would like to say this is always an issue. I am a professor at a local university and I advise my students to only use images as models not as an exact image. The reson being is you ask yourself the question is it the image itself or the pose that attracts your attention if it is the pose then put any image in that pose other than the original person. You would probably change it by at least 35% from the original.

  28. I think if you are going to make the image LOOK like the person you are using as a reference , you should get permission from the person, because you have entered the are of portraiture. If you are using the image as a reference in body language, proportion, etc. but do not make it resemble the face, it should be fine.

  29. Jason, this is a legal issue and there are right & wrong answers to it. I don’t think you’re doing artists a service by showing random opinions on such a topic unless you separate them to show the variety of misinformation floating around on this topic & clearly separate them from an also presented correct legal analysis by a competent IP attorney. What I can tell you and your readers is that many of the “opinions” here are off the mark.

  30. If you are going to make the image LOOK like the person you are using as a reference, you should get permission, because you have entered the area of portraiture.
    However, if you are using the photographic image simple as a reference in body language, proportion, etc. but do not paint the face to resemble the photograph, there should be no
    problem.

  31. My thought is that “public” is public and “private” is private.
    However, in the case of the musician who demanded the art to use for the cover of his CD, the artist could have and should have been paid and the work ackknowledged on the CD cover. The musican got for free what would have cost hundreds/thousands of dollars.
    In my opinion the musican cheated the artist for self gain.

    Question, did the musian get permission from the artist to use the aer on the cover?

    Now who has legal rights?

  32. This situation is more clouded by potential legal issues than you might think. Anyone that is a celebrity (or thinks they are or may be someday) can make a profit off their image and owns the rights to do that. You don’t. But it’s worse that that.

    Speaking to the equestrian part of your painting –

    I had a friend that made a nice living doing horse portraits. And she sold lots of prints featuring race horses and had a collector base for same. Until one of the horse owners sued for use of the horse’s image without permission. The fee he wanted was not incidental. Put her OUT OF BUSINESS.

    There is a reason why you see bystanders’ faces blurred out on TV. Better to safe than sorry.

  33. Hey – the paparazzi does not have to request permission to take photos of the rich and glamorous; why should we, as amateur photographers? I would like to think that if I took the photograph myself, I should be legally permitted to reproduce it in my art.
    That said, I have not researched it, and will do so.
    Thanks for mentioning it.

  34. I rarely take pictures of people I don’t know, and when I do, if their face is visible, I have a sense of intrusion, an uneasy sense that I am taking something that doesn’t belong to me. I would only use an image of a person’s face in a photocollage or print if it was changed in some way to make it not recognizable, to make it archetypal instead of specific. Copyright is the lesser issue to me, it is more a moral question of the do unto others rule. How would you feel if someone created a recognizable image of your face, posted it all over the internet (an image on an artist website can end up anywhere) and then made money from it, without asking and receiving your permission? A person’s face expresses their DNA, their soul. I would respect privacy unless otherwise instructed by the subject.

  35. I live in California and I create artwork in the public area. And people want to take pictures of me and put them on the internet doing chalk. And venues want to use photos of me/my artwork for raising money. The venues know to make us sign releases for reproduction. I know being out in public eliminates my “expectation” of privacy. I know the laws in California are more significant and yet still changing periodically because of the complications of how identities are used. The entertainment industry (celebrities) have had a major impact on generating this concern because of people making money off of their images – and that IS at the core of some of this. In addition, capturing photos of children add an additional layer of complication because even in the public arena they have an additional layer of protection being under age and being reproduced – even if it is not for profit. It is for their protection.

    Copyright laws last 75 years BUT, if they are renewed they will will be lasting longer, so check before you assume they are expired.

    If you are doing a piece of work that you expect to be in the public purview then it is always best to have explicit consent of the model. In California especially – make sure any performers have provided explicit permission (writing would be best), and children have had their faces altered, or their parents provided written consent.

  36. Interesting question. There was a court case here in New Mexico recently that involved a guard who was taking pictures on the security camera of women in the parking lot. Although it was considered poor morals, the judges ruled that because the women were in a public place the images were not illegal. Don’t know if the same principles apply to taking an image in a public place and using the images in our art. Since I work almost exclusively from photographs and teach my students to do the same, I also try to alter the appearance of any figures in my pictures. I also teach my students to never totally copy a photograph but to create their interpretation of the photograph.

  37. There are several issues with the above situation. I’m a photographer, not a lawyer, but I have taught photojournalism and legal issues arise and I have read up on it. When a person is photographed in a public place, they can have no expectation of privacy. Their images can be used in all non commercial media, as long as the publisher is not defaming them, or making false statements about them. Hanging pictures in a gallery and offering them for sale is usually considered a private affair and isn’t typically a problem. Paintings from photos are even more removed and usually aren’t a problem. Brands, and property rights likewise aren’t usually a problem in a private gallery. If someone wants to sue though, they may, whether they have a strong case or not. In a gallery, you’d win, but it would be an unpleasant experience. BTW, Andy Warhol’s famous portrait of Marilyn Monroe was taken from a publicity shot by Gene Korman for the film Niagara, made in 1953. He never got permission, and the feeling was it was different enough that it wasn’t a copy.

  38. If I use a photo of a stranger I like to ask permission, but if asking isn’t possible for whatever reason I will change details to protect the person from being completely recognizable. Very few people will deny you the right to create their image and use it–if they like what you’ve done–because they’re flattered by the attention. I’ve had several good commissions come out of incidents like this.

  39. Looking at this from a legal perspective is complex but boils down to expectations of privacy. When you know someone is paid for the use of their image it’s important to be respectful of their rights and the prospective contexts such an image would be used. Also, when someone isn’t generally paid for their image and their image is used to sell something or otherwise generate income, artists should be respectful of their rights, not only to privacy, but some means of compensation. As always there are exceptions. When you nose around exceptions, you increase your risk and exposure to liability. Even when you photograph someone without first asking them, without the expectation that they might be photographed, you can be in trouble. Singling out a person in a public venue might be actionable if they are recognizable.

    With the development and pervasiveness of facial recognition applications there are going to be many more examples of fuzzy boundaries that will invite litigation. As a rule, I always ask for permission first, but the nature of my art makes that easy.

    I don’t think a credible art movement could be built around actual violations of privacy. Maybe in a black market but that by definition is not credible. Unless, I suppose, you are willing to let your great-great-grandchildren sell the work.

    From a marketing perspective the more people you can connect with the better. You can talk about your work, hand out business cards, direct them to your website, sell you work, and otherwise start lasting conversations. If you are shy, you’ll have to learn to get over it and talk to people. Let them know what you’re up to; as has been said, they will likely be flattered. It’s nothing personal, right?

  40. Disclaimer: I am not an attorney nor should the information below an offer of legal advice. Please contact a qualified Copyright/Right To Use lawyer for legal advice.
    I am only able to speak from a photographer’s viewpoint. I shot commercially for over 10 years and learned some difficult lessons. Here is a thumbnail of what I learned.
    1. As mentioned earlier, “Copyright Laws” vary from one jurisdiction to another.
    2. Each individual has ownership (by birth) or their image and has the right to determine where their image might be displayed. The notable exceptions are Professional Athletes, Performing Artists and other High Profile public figures who, to a limited extent by the nature and in the normal course of their profession, have conceded their Right to Privacy.
    3. Although photographing a person or persons in public (or a public event) automatically gives the creator of the image Copyright Ownership, it does not grant them the right to use the image(s) for commercial purposes. Copyright and Right to Privacy Laws are intrinsically tied to one another.
    4. Many actors and actresses routinely “Copyright” their likenesses (some as Trademarks) in an effort to protect their personal and professional image.
    5. Imagery produced by professional photojournalists generally are exempted from the requirement to secure the subject’s permission to publish their image if the image is taken as a part of their normal assignment to cover a public event and is published as part of news coverage. This, however, does not give them license to use the image for other commercial purposes without a formal “Release”.
    6. Generally, if the subject of an image is easily recognizable, whether from facial exposure or circumstance, we legally need their permission to use their image for commercial purposes. Using an image in one’s portfolio or as a sample to market their work are just a couple of example of commercial usage.
    7. The “Model Release” is the single most powerful tool in a photographer’s (Artist’s) toolkit. It provides a legal means of protection when using someone else’s likeness for commercial purposes by detailing how the image might be used and the compensation the subject “Model” receives in “consideration”.
    I am astounded by the naive responses similar to some of the posts above concerning photographing people in public venues. We may own the intellectual rights to our imagery, photographic or otherwise, but we do not have the implicate right to use the likeness of another without their permission. This also includes the production of composite images where the subjects are easily recognized. Every reputable Publisher requires the submitter to provide legal proof of Copyright Ownership or Licensing AND where involve Human subjects, they require a copy of the signed Model Release before they will consider publication. The bottom line is, whether one owns the copyright or not, IF one uses another’s likeness without their permission they do so at their own risk!

  41. Having photographed people for many years I always get a model release before any work is published or sold. Having the release has eliminated any potential problems that may arise. I want to spend my time creating photographs and not defending any issues in court. Simplify.

  42. As a painter you should be able to paint a face or animal without anything more than a anatomical reference , a horse is a horse a face is a face . If portraits are going to be part of your business , I would ask permission to use it in your advertising from the person you did the work for . I would never use a random person as a subject without their permission . Try family members . One famous illustrator uses his family as a reference base for his characters . James C. Christensen often uses his wife ,children and friends as a general base for his portrait like paintings also , but does just fine without any reference as he understands anatomy that well . Again , you should be able to do this without using an outside source . Lack of Privacy is something that is part of whats wrong with America . If your making an exact copy of a photo , you may indeed need to get permission or credit the photographer . Legal issues are a pain to say the least and change constantly , try to find a method that avoids the possibilities . Suing somebody in this country has become a way of making a fast buck to avoid having to work for it .

  43. As pointed out above by another comment , people have lost their business because of petty law suits with absolutely no ill intent on their part . I would like to see you be a success , and wish you well , just be careful .

  44. I had the same issue as I was painting from Ren faires. Most of the people I painted recognized themselves and bought the paintings but one woman was very upset at first and so I changed my policy. It’s just too traumatic to have a negative reaction from someone. So now, I hire models and get written permission and I began an Tableaux Vivant event where reenactor friends gather with their horses and props and traditional clothing and I invite artists for a fee. The models get paid, sign a release and everything is on the level…no wondering. I am much happier doing my art in this way.

  45. I have to heartily agree with David Coblitz on this one.

    Something to consider…what if your painting was on display in an exhibit and someone took a photo if it and then used it as a reference, altered or not? Would you be flattered or upset?

  46. Hi Once, I made a video of a mural that was painted by fellow students, I got their signature giving me permission to use it. Even when I am using another persons name or information about them, I ask permission. I’m going on a trip and I thought I wouldn’t tell the fellow strangers who I am and that way, people would be more friendlier to me and not so guarded. This is probably off the track of your discussion on getting an ok from the person whom has this problem of copying an image. But many people repaint or draw an image and create it in their own way. I really don’t see anything wrong with it, as long as it isn’t copy written already. Hope you got something from ideas. Shalom, Esther Pearlman

  47. Personally, if my image showed up in a brochure, newspaper, newsletter, or website depicting an event I attended I’d be pleased. But, if while at an event my image showed up in a painting or photograph in a gallery without my permission I’d be angry.

    And if they were using my image as a promotional tool for their portrait business I’d hit the roof. It would be misleading to present my portrait as an example since I never commissioned the portrait.

    Simply changing something about the person’s appearance really isn’t fair to them and may anger them further. Using someone else’s face on their body with their horse makes me wonder why you don’t simply stage a shot with friend as the model.

    Additionally, in these odd times, you may be advertising your business with the portrait of someone in the Federal Witness Protection Program, on the run, hiding from an abusive ex, etc. You may inadvertently cause them to be harmed or bring harm to yourself.

    I’m sure you don’t want the Police, the FBI, or an irrate ex-spouse with a gun showing up at your door asking questions.

    Getting permission is the safest way to go for both you and the person whose image you wish to use. You just don’t know.

    If you already have a business painting portraits, can’t you ask one of your prior customers if you can use their image? They may be flattered.

    When you are doubting what to do then you need to ask.

  48. I am a commercial as well as fine art photographer. Copyright and usage can be vague and confusing but caution is always advised when using an identifiable likeness. The sentence in this question which lit the red light was “I am using it on my portrait brochure and probably will use in advertising.” yes, the First Amendment protects your right to freedom of speech and freedom of image display but there are conditions. You are pretty well protected when displaying fine art on a wall, book, or other medium. I still think it is wise and fair (but not legally necessary) to have releases for fine art display. The problem comes when the image of an individual is used for commercial purposes. For that use, you must have a model release just the same as if you would if they were used in an ad campaign selling Coca Cola. I would not assume that anybody would be “flattered” to see themselves on my brochure the purpose of which is to sell a commercial (albeit artistic) portrait product. Finding your photo in the newspaper at the scene of breaking news is not the same as seeing a photo of yourself drinking a beer in an ad for the pub you were drinking in. Different uses have different protections.

    It is also possible that the venue where the original photo shot could have a claim if it was on private or leased property. Same as making photos of performers on stage. Your ticket to such events often states that photography is prohibited. This prohibition (like so many others) is often overlooked by both parties until images show up in commercial use. Imagine doing a fashion shoot in Disneyland.

    I realize that I may be restating what has already been stated here but it IS important. These laws protect you too! I was once mailed a political candidate’s brochure with one of my photos on the cover for which I never gave a usage release. I was paid most handsomely for this “oversight”. Last note: good news travels very slooowly. Bad news travels at the speed of light.

  49. I carry model releases for both the person and the horse or other pets owned by a person, in my camera case, and in an envelop in my sketch pad. I never ever put a person or pet in a painting, sketch or photo without their written permission. I regard it as a common courtesy to ask permission first. Some people are offended or uncomfortable with a camera pointed at them, others think it is a complement.

  50. I’m a few years older than than Arni Anderson and I can reflect that over the last 40 years the attitude has changed regarding copyright issues. I was a producer – engineer for a California public Radio station for over 20 years, recording hundreds of musicians of all genres. When I started, a simple performance release was all that I needed, but over time getting permission became almost impossible, largely due to digital recording and the development of the internet. There are always unintended consequences. If the trend continues to its logically absurd conclusion, soon everything and everyone will have a copyright and we can spend all our time trading royalty payments. As Socrates said “Everything in moderation”, and by all means credit where credit is due. But I fear with the new global content screening treaty being considered by our (legislators?), matters will take a turn for the worse.

  51. David is right, way too much misleading information. Someone mentioned something about changing 35%? There is no percentage of change that makes copyrighted material okay to use in any form. Here is an excellent example of an artist thinking he can use another’s copyrighted work to create something new. In music it is called sampling, in art it is called appropriation. We’re talking millions of dollars on this one.
    http://www.pdnonline.com/pdn/news/Appropriation-Artist-2241.shtml

  52. Speaking just as a person, how about some common courtesy. Someone using my image however they want because I attended an event or because I participated in an event where they were too? Bad. Asking me first so I can decide? Good. Someone putting my face on another body, even if the body is wonderful? Or fattening me out or slimming me down so I supposedly won’t know it’s me? Bad & soo not amusing. Asking me so I can consider it? Good, and maybe I’d even be amused.

    As Dana Davis commented, ‘Bad news travels at the speed of light.’ So if you use my image without permission and I find out about it, it may not be a pretty scene, plus it most likely will involve some type of very very public legal action (the best way to “get to” an artist, right?).

  53. If you are going to have to show a recognizable face on a figure painting, wouldn’t it just be safer to put some distant relative’s features on there, preferably one that is deceased? If I quit looking at the reference about 15 minutes in, they all resemble my dad or grandma.

  54. Having already been exploited not once but twice, for use of my face in a mold for porcelain slip to make a large Art Deco wall piece, and once for a nude that was blown up and hand colored and placed in the Hudson Valley Art Show (unbeknownst to me) I can say you should GET PERMISSION IF AT ALL POSSIBLE. At this point, I don’t even like people shooting pics of me without permission. It is awful to be used in such a way, and to have someone come up to you and say, hey, I just saw . . .
    I was trying to be helpful to artists and had no idea they would then turn around and make money off me and not tell me. ps I was able to get the nude out of the show. But another artist has video footage of me and I swore if I EVER catch her using it I will sue.

  55. Years ago I read the “Legal Guide for Artists”. In that book it was stated that if you are painting something that is used by the public for public entertaining or gathering you do not need to have any written agreement as it is for use by the general public. The book stated that would include churches, main streets, theatres etc, however if you are painting someones private residence you do need written consent, just as if you are painting people you either need to change their appearance or get a written consent form signed by them that it is permissable for you to use them in your paintings. Otherwise you do have a legal obligation to pay them a residual percent of every painting or print produced. Hope that helps.

  56. I am not sure how this relates, but it is a twist that puts us, artists, on the other side of the camera.
    Does the credit and copyright for a photo of our work by default belong to the photographer or the artist or both? Does a publisher credit the photographer or the artist or both.
    This happened to me:
    I hire a photographer to take a picture of a 3D piece. It is a very good photo of a very good piece. I submit it to a call for a book.
    The piece is selected for the cover of the book, where they fail to credit either me or the photographer.( The back cover text includes reference to my work in which they get my name wrong.) The piece is found, with correct credits, inside the book.
    The publisher also uses the photo on the cover of its seasonal publication brochure in which they credit the photographer but do not credit the artwork in the photo.

    Is it only the photograph that has the copyright protection that demands credit?
    JEM

  57. I feel like artist have the same freedom to paint their own photo just as a photographer has the freedom to publish photos of people. I do agree artist should not copy others photos & make money from selling them .
    Linda

  58. In my humble opinion as an artist, I would never put anyone’s face in my art without their permission. The face of the rider could easily have been changed to the artist’s face. Therein, there would be no problem. The number on the horse, also, can be easily changed. We use artistic license to change many of the things we may take pictures of, why not these items. I would cover my tail end in this case and make the changes. Hopefully, the brochuren and advertising are not already done. One never knows when there is a lawsuit waiting in the wings and this gives the rider a perfect out to go after royalties at least and to sue for any other reason she can think of to do so. Better safe than sorry. Good luck with this issue and please let us know what you have decided to do.

  59. I am a marine and portrait artist. If I use a photo someone else has taken, I ask for written permission to use it as reference. If the subject is a person and I can identify that person I will ask for permission, whether it is a portrait or a group piece. If I sell that then I am clear to do so.
    And to JE Mozkin, a credit or copyright photo of your work without your permission is not legal. If you enter a piece in a studio setting, a gallery, an art fair or art show, then when you signed your entry form you have given the venue the right to use your art.
    If you are in a book I would assume you were also asked to sign waivers, and if they gave you credit for your art they have fulfilled their obligation. The credit for a photo
    of your art therefore must be given to you and the photographer. And no the photograph is not the only item protected by copyright. I am not a lawyer and these
    like any other issue can be challenged.

  60. The issue of photographed work comes up in Albuquerque a lot. The International Balloon Fiesta is the most photographed event in the world. I got to be the awkward witness to an artist being severely taken to task about photographing a vintage car at a show, making postcards, and selling them without permission. He claimed the Balloon folks never minded, more likely they never tracked him down.

    One of the potential offering an artist can make if they really want the image and they don’t want to pay for it up front or complicate life with percentage of sales, is to offer the original to the subject, free, if the artist can have use of the image in the form of prints and marketing. The equestrian folks usually like this option. Always ask before you publish.

  61. For me, the answer is plain and simple; permission in the form of a “model release” should be obtained beforehand. If the artist takes it upon himself to create something with a person’s recognizable image without asking, it should not be exhibited until the release is obtained.

    Why don’t you just paint someone elses face in place of that one? Most of the time the buyer of a equestrian painting like that is someone who just loves paintings of horses no matter who sits on top of them.

    If you were trying to get the attention of that particular rider to take notice of your work, then you should have asked first. They probably would have been flattered and asked for your card so they could keep in touch with you…to buy it and refer their friends.

  62. I have read that it is best to have any model–whether you hire/pay them or not–to sign a release allowing you to use their likeness. I am not an expert on the legalities of the issue, but it seems to me common courtesy would dictate respecting a person’s privacy. If someone really wants to get business painting portraits, s/he could get friends/family to pose for samples. Maybe a friend with a horse, in this case? Even non-celebrities have a basic right to privacy.

  63. I’ve been doing mixed media portraits for about 20 years now, and I always get permission to do them, whether I’m doing a person, that person’s dog, cat, house, etc. It might not appear serious to some, but there is always a chance that the portrait will conflict with the subject’s self image, and then there can be difficulties. So I always get permission. In the long run, it’s safer.

  64. Always be safe. When in doubt ask permission. I recently took a great photo reference at a parade. While I was sure the mule wouldn’t mind I felt I needed to ask permission of the owner because of the unique saddle. I eliminated the rider in the painting except for a leg and hand. I had to do some tracking in a parade program, but sure enough, the saddle was a custom design and the owner was flattered that I asked and permission was given. It’s not that tough to ask for permission and then you can paint without someone tracking “you” down. I’ve asked permission from others, including a magazine, in the past and never had an issue.

  65. Why all the fuss? Just paint out likenesses and be done. A horse at a horse show, with rider, is all it needs to be.
    If there has to be a likeness then of course permission is necessary. Even taking photos of people in public places is frowned on, so painting likenesses of unknown people is the same.

  66. Common courtesy should prevail, regardless of law. In this case, the face of the girl and the number on the horse should have been changed. I can think of no possible benefit to the artist to leave those features identifiable……… unless it may have been to promote his ability in portraiture, in which case he should certainly have obtained permission.

  67. You can paint the person and horse you photographed but you can’t sell the painting unless its to them. To use the image in advertising, such as your promotional material you would have to have a model release ( their permission to use their image ) If the art work was an impression of the person and not recognizable, for instance, their stance or position and without the horse’s distinctive markings you would be safe to sell the painting and use it any way you needed. I agree with Mary Klinetobe.

  68. These days it is getting rediculous at how careful we have to be when creating art from our own photographs. I always ask permission first, that way there is no ambiguity from any side of the fence. You can always offer the person a beautiful Giclee (one off) image of the original as a gift to thank them.

    This is what I did; I asked the train driver if I could photograph him for my next drawing. I told him I would be drawing an image of him then selling it. He was fantastic, as it was we ended up holding up the whole train. I am soooo glad I asked that man’s permission. he began to appear on an advertisement and several people recognised him in my drawing. The collector who purchased the image was proud to have a historical image of the driver of the Mary Valley Rattler hanging in his business.

    It gives the art a historical context when you know who the person is. I would make it a point to approach the person you are interested in photographing, ask them permission by all means then let them know what you intend to do with the photograph.

    I sent the man a high resolution photograph of the drawing and he loved it so much he framed it and hung it in his living room. Happy story. I always ask permission for drawing and painting people.

  69. In my volunteer work I see people from all walks of life who are struggling to maintain their privacy and anonymity, for their own safety and that of their families. Please consider asking permission before you show or publish an identifiable image of a private citizen. It’s important in ways that extend far beyond copyright laws.

  70. Very good question, especially since I’m primarily a figurative artist. I have not previously obtained models’ releases. The models I’ve painted were hired by me for paintings, which they knew were produced for exhibition and sale. One European competition I looked into requires that the artist have a signed model’s release. So I guess in the future, this will be another step I’ll add into my process.

  71. Mary Klinetobe is on the right track. You should always get the permission of the person that you are painting, unless you make the figure unidentifiable. People have the right to pursue royalties from any work that is produced and used to profit from. If you have used them without their permission, they do have a right to sue. You are taking a risk by going ahead with publising this woman’s likeness. It is a good idea to change it enough so that she cannot be identified or simply get her permission.

  72. Assuming that there may be many legal issues involved without receiving permission would make a good case to get it especially when the subject is unaware…but if not possible, then the likeness should be altered if it is to be used in a show, publication or sale. In a way, it’s like copying a painting done by another artist & selling as your own…it’s just wrong without permission of some sort, I think.

  73. It is best to ask the person before taking their picture if you plan to use it in a painting. And ALWAYS ask a parent before photographing a child.

    However, if your painting doesn’t have recognizable people, I think it is acceptable to use photos of people as reference.

    I object to people taking photos of my artwork. If they like it, they should buy it, not photograph it.

  74. I suggest you all read “Dan Heller’s” ” A digital Photographer’s Guide to Model Releases”
    Wiley Publishing, inc
    This book covers in depth the world of Releases,when they are necessary and when they are not.
    Perry

  75. You should always get the permission of the person, famous or not. It is a legal issue, but it is also one of common sense, common courtesy and respect. I would not like my image nor a image in whole or part of my artwork used in a piece without my permission, or knowledge. Im aware there is a percentage “rule” which I do follow with copyrighted images. I do not use images of I whole or part with Coca Cola, Pepsi, McDonalds, Marilyn Monroe, Elvis, etc……..these entities pay bundles in legal matters…..I have no interest in fighting that battle. Thanks for blogging about this.

  76. Cindy Wider did what I think is a great idea-give credit and ask for release if possible and offer a copy. Most people, esp. if asked, are fine. Its the not being asked. A sculpture of mine was used to make a small Christmas ornament to raise monies for an Arts group. It was a sculpture from a fund raiser they put on but the deal was hurtful because no one took the time to call and tell me. They were sold out by the way. Nice, but it would have been nice to get one and buy more for relatives wouldn’t it? (found out because I found the “announcement” of the ornaments on the web when I Googled my name a year later on a whim) The same sculpture was used on the cover of a local magazine, with no notice to me or credit for my work-just a generalized credit for the show. I found both instances to be rude and I would have liked a copy of the magazine to. I would have been complimented in both instances except for lack of credit-like my name isn’t important.
    I’ve always heard that it is both legal and polite to get a release if possible and esp. if the person is facing you. Sometimes this is hard as you take photos everywhere if you are a working artist. Vacations are a great excuse, so you might never see that person again. Then one decides to change the image or only use persons with their backs turned etc. ESp. when it comes to children, as they are underage and that’s a whole other ballgame! I think mainly, that we need to remember to be (as Mom would say) respectful!

  77. “Good artists copy, great artists steal.”. A quote most of us know by Picasso. I am both an artist and a writer so the realm of ” artistic license” is always at the front of my mind when creating a painting or a book. In an age of streaming information a person’s identity is likely to be common whether by virtue of a web search or the mass production of photos/ use of name. To me this issue comes down to common courtesy. When I wanted to incorporate a well- known person into my novel I emailed him to ask permission, which he granted happily. In painting there is a very blurred line between “original” and “copy.”. If you’re as good as Rockwell then you have possibly painted a “photo” of the subject…..due respect to Rockwell his artistic interpretation made all the difference. I would simply ask permission or change the key identifiable features such as the face and number on the blanket.

  78. Photos taken in public places are public domain. It’s your photo, you own the copyright to it. People can get caught in the cross hairs of a brush/camera all the time.
    If you’re worried of offending then don’t offend. If you wouldn’t want someone else to do that to you then don’t do it to someone else.
    If time is of the essence here, use artistic license. Use your magic! Change the face, ID emblems, etc.
    If you are attempting to show your expertise in getting a likeness of someone who is known in the equestrian community contact them and work out an exchange for using them as a model for your portraits. Do a free portrait. Admiration goes a long way and so do manners.
    Get legal advice so you know your rights and understand copyright law.
    K. Yaude

  79. There are countless of examples of people being used as subjects matter in photography (famously) without any formal permission. I’m not sure why it would be any different in a painting. I agree that if there is questionable nudity (image taken unbeknownst to the subject, even in a public event) I would ask or simply not do it.

    Most people don’t realize that you don’t have nearly as many rights to this regard than they imagine. If you’re outside in public, you pretty much give that up unless you specify otherwise. An entire industry of paparazzi should be example enough.

  80. I learned to paint by copying anything I fell in love with, from old masters to pictures out of magazines. However, there is nothing more embarressing than having a viewer come up and say “Oh, I have seen that before…” It did not take me long to know I had to break that habit. If I am short on “body shapes” or background ideas, and use a photo, I am sure to make it totally my own. Different face, hair, clothes, so all I am using is the contortion of a body (human or animal), or just a basic idea for a background. That may be why I find Still Life so comfortable, all the objects are mine. I feel bad for the artist when I come upon a piece that I recognize. Legality aside, I just want to be sure it is all mine.

  81. I agree on getting permission before using recogniziable likenesses or notof people. I like to have permission from people because the work would not be possible without them. This is true respect and it will always enhance your work. People are more important than art.

  82. Interesting subject! While it’s clear that painting a likeness from someone *else’s* artwork–say, a photograph out of a magazine or book–would be copyright infringement, and here is an interesting case of that:
    http://www.pdnonline.com/pdn/news/Appropriation-Artist-2241.shtml
    …I haven’t thought about the case of painting from life, or from a photograph you had taken yourself (and therefore hold the copyright). I’d assumed that was fine, after all, they are in public. One can’t use their image commercially (i.e., in advertising) without consent, but in a piece of artwork such as a painting? Is a painting “commercial”, in the eyes of the law, or not? Well… time to buy the “Legal Guide for the Visual Artist”, methinks!

  83. I think the idea for the figurative painting has to come from the artist, then multiple references can be combined to flesh out the imagined person. I never paint a face I haven’t personally posed for and photographed. Aspects of my image are mixed in to all my figures whether male or female.. I also use google images to get basic gesture.. I like them because they pixelate badly so, i have to fill in the blanks with my imagination and information I have gleaned from other sources.

  84. What happens if you take a photo of someone and he is not famous at that time? But later is very famous and now wants royalties on your photo or artwork that you did in the past? They can sue. The time someone spends in court and legalities, not to mention the costs involved is tremendously taxing. So, get WRITTEN PERMISSION on anything you do and possibly a photo of that person actually signing. Prevents them from saying later that it was a forged signature. My husband was a lawyer in Las Vegas and loved to cover everything from A to Z.

  85. I Believe it is necessary to get permission for many reasons including some that most people don’t think about such as witnessed protection individuals that still need to have a LIFE out with people but do not want to be recognized as being in a particular locality where they can be traced. So I feel it is best to get their permission or take artist’s licensing and change the picture enough so mas to the individual is more generic.

  86. If you are taking from the likeness of a photographer’s work…it cannot be an exact duplicate, & the last I read (Copyright guidelines) there is indeed a certain percentage of the painting that has to appear different. In other words…if you are doing figurative/portraiture work, obviously, YOU CANNOT COPY someone else’s work (whether it’s a photograph/painting).
    If you are using the likeness/portraiture of someone & they’re not posed…you MUST ask their permission. If you are not a Professional artist, and never plan on having your work exhibited ever/or don’t want to be housed in a museum one day… then I assume you can take the chance no one will notice it hung on the wall of your home. For example, I have successfully asked permission on FB …and the person considered it to be an honor to be painted.
    bev

  87. I haven’t read all the comments so I hope this isn’t redundant. The magazine Artist’s Calendar has had articles on this in the past. I believe that permission is required unless the person is a celebrity, in the public view all the time, and even then, there could be liability issues. I would not be happy if someone used a photograph of me without my permission and I’m not sure a painting is any different.

  88. I suggest that you all stop wondering and go to your local law school and take a course on this subject as I did. It will clear up many of your questions. Those of you in the Dallas/Fort Worth area may contact may contact Katherine Ware [katherine@artscouncilfw.org] for upcoming in NEED TO KNOW Art Law workshops presented by Texas Wesleyan law students under the supervision of Texas Wesleyan CLIP faculty. Most of the workshops are free or for a small fee.

  89. The courts allow for use of anyone’s image, including celebrities, in any original creation of art. It is only when the image is mass produced (over 500-1000 perhaps) and for commercial gain, such as on t-shirts etc, that the artist may be open to a law suit if the image of a celebrity is used without a release.

    I have a list of organizations who own celebrity image rights. It is possible to obtain permission to use the image of a celebrity. So there are many variables and factors in play. This year a corporation purchased the Marilyn Monroe estate for 50 million USD and announced in the press that they want to exclusively handle her image. So it may not be as easy to use Marilyn’s image now as it has been in the past. There are so many factors and they shift and change all the time as celebrity estates and purchased and managed.

    It is very easy to get permission to use an image of a famous historical figures, such as Thomas Edison or the Wright Brothers, but difficult to get permission to use the image a living Hollywood star, for instance. Perhaps the use of another’s *name* can sometimes be more the issue that brings on a law suit rather than the use of their image. Paintings are not exact realism. Even a Photorealism painting is not the same as using an actual photograph of an individual.

  90. I worked for 6 years designing childrens jewelry, copy right was an issue as far as creating Disny Jewelry for exampel, My boss paid $100,000.oo a year to use the Disny designs. at that time. when other companies put out Disney Jewelry he turned them in. Any one can use a copy right item but it was said that if you sold something put 10% aside to pay the copy right.

    Any Items or people you photograph, shouldbe asked if you may take photos of Especialy children. I cannot have children in my school photographed unless parents sign a waver . Their photos cannot be used in advertising or on the website without the parents ok in writing. So just have some forms made up and ask it doesn’t hurt. JP

  91. I understand what art law states but as an artist who gets to paint native americans that none get to paint portraits of I can say if you paint a Native American that if you ever want to do so again you must have permission from the person. It is an automatic black ball if it is discovered in the indian world that you painted anyone white or indian without their permission. I had one wonderful dancer that I really wanted to paint say i could paint him for me but dont sell me please. If the person is that wonderful a subject at least let them know and ask them for their permission. leave them a card and in the day of the digital camera it makes them feel better about giving permission if you show them what you take of them prior to leaving them. Most people are flattered and quick to give permission if you just ask

  92. I’m a figurative and portrait painter. I have painted strangers many times – usually in altered compositions that differ from the particulars of the the place where I saw them. I use photographs that I take (I do not replicate them in photographic detail but they are always recognizable as the person). I ALWAYS ask permission before I photograph them and tell them why I am doing it (for a painting that may be created). I get their name and give them my contact info. AND make sure to tell them I will NOT be calling them to press them to buy the work when it is done, but if they give me their contact info, will tell them if it is on exhibit. (New Yorkers are suspicious – rightly – usually if someone wants yo take your photo, they plan to sell the print to you!!!) Occasionally, someone will ask if they will be paid to help. I say “no” – usually those who ask this, then decline to be photographed (some New Yorkers are always angling for a ‘deal’).
    As you took the picture already and created the work, and as your wife knows who the subject is, I would contact the person and ask permission. Changing the number on the horse blanket doesn’t alter the fact that the painting is of the person (who said he/she doesn’t have another blanket with another number on it for other races? Likewise, if someone wants to be difficult, they can say that you don’t have permission to paint the horse either, perhaps or might sue later if the picture comes to light or is reproduced for a profit.

  93. There are 3 issues here: copyright, privacy & compensation. Did the artist take the original photo? If not, then s/he needs to get permission to reproduce. Was the event a public event? If yes, there is a general expectation that images taken DURING the public portion of the event are indeed in the public domain but if the image was taken during a rest time or time other than the public display, then there is a privacy issue. If an image is being used for commercial purposes (& selling one’s art is — forbid the word — a commercial venture), then some form of compensation for time and use of one’s image is in order and, I believe, affects the privacy issue. This summer I attended a Pow Wow and the host made these issues very clear — said all of the participants were aware that photos would be taken during the dancing & performances but if anyone wanted to take a photo at other times during the Pow Wow, s/he needed to ask permission of the person to be photographed BEFORE taking the picture and the “model” may ask for payment. It was also an expectation that any images would be used/reproduced with respect and not adulterated in any negative manner or made public/published in an embarrassing or derogatory manner — and if possible, the personal identifying characteristics w/b anonymized unless other arrangements had been made with the “model.” It is also common courtesy to ask someone if it is OK to use their image (even public images) before doing so — and it seems some form of payment is in order as well as written permission. I was very impressed that these expectations were stated up front.

  94. |Years ago this came up and I asked a friend who was a judge. I was told that if you are drawing, photographing, or painting in a public place and the pieces include people, the people in the work forego their anonymity because they are in a publicly accessible place. There is no reasonable expectation of privacy.

  95. The correct thing to do is to get a model release form, especially in photographs but also when the object is recognizable. Figurative artists seldom do this in the greater DC region, and when I asked an opinion of teachers at colleges, universities schools, etc, I was told that if it did become an issue, then they wouldn’t hire a model who required this.

    Best, though, is to get legal counsel if you want to cover all bases.

  96. I have gone up to perfect strangers in public and complimented them on their faces and asked if I could take their pics to use in sculpting them.. I have never had a no, and I am sure I have caught people off guard, but most have been flattered.. 3 recent situations I am not sure about though. One involves a very unique man of Mexican/Aztec descent who has one of the most unusual faces I have seen and I could so picture him in native attire/headdress. He was flattered when I asked about sculpting him, but then said, well yes if I could have the piece when you are done. It is up in the air right now. Another involves a very severely deformed man who has given permission for me to sculpt him after I saw a photo shoot of himand he was all for it. How to do this in a respectful sensitive way , as I approach it I am feeling a bit uncomfortable about it. And a third situation involves a public figure who performed locally at an event I attended and I approached his assistant about taking a set of photos for a clay portrait, as none had ever been done of him before. Both of them were amenable, but when his manager found out he said no? What to do? Since he is a public figure do I need to ask or can a sculpt a bust from existing photos? I am not sure.. any ideas?

  97. I’m an artist who through a series of unfortunate incidents, felt I had to research this issue thoroughly to a definite conclusion, and did so. The bottom line is that anyone’s likeness can be depicted in a work of fine art. Period. The only legal stipulations regarding the use of someone’s likeness is if said person’s likeness has taken on a monetary value. (Celebrities) One may depict a celebrity in a single work of fine-art, one may not depict a celebrity’s likeness on t-shirts and sell them for example.
    I have the facts to back up my assertions. Below is an excerpt of a blog post regarding what happened to me, and what I did about it. If you’d like the full story, it can be found in my blog:
    http://daybydaze.blogspot.com/2010/08/canfield-fair-revisited.html

    ‘Freelance photographers can’t go taking pictures of young girls without telling them what they are doing,” Was one of the statements made by John Vogrin, Assistant Security Chief of The Canfield Fair, to Andy Gray of The Warren Tribune Chronicle in an interview for the article Gray wrote pertaining to what happened to me on September 6, 2009. In the interview, Vogrin said officers checked to make sure I wasn’t a member of the media or working for the fair before I was questioned. He said the fair board has a right to restrict what people do on the property, comparing it to stopping a vendor who was selling merchandise at the fairgrounds without the proper permits.

    What outraged Vogrin the most when I was being interrogated, was my answer to his question, “What legitimate reason would someone have for photographing a child that wasn’t their own at The Canfield Fair?” When I told him that I was an artist, and that I drew inspiration from the photos I take, he became quite indignant at the prospect of me profiting from photos taken of people at the fair. I tried very hard to explain to Vogrin slowly, and in simple terms, that my motivation for the artwork I do isn’t profit, but to celebrate my subject. He simply couldn’t understand why anyone would create a work of art if it wasn’t for profit.

    Profit, or not, can someone photograph a stranger in public? If so, is there a limit to what can be done with the image? This is something you should be interested in getting to the bottom of, because I’ll bet you have a camera, and it doesn’t matter if you intend to photograph a stranger or not, you could easily find yourself in the same situation as I did, or worse.

    The Right of Privacy

    There is no standard, spelled-out federal right of privacy, however there are provisions made to protect our right to privacy, usually found on a state to state basis, this is generally how it goes:The right of privacy is restricted to individuals who are in a place that a person would reasonably expect to be private (e.g., home, hotel room, telephone booth). There is no protection for information that either is a matter of public record or the victim voluntarily disclosed in a public place.” People are usually successful in calling upon The right of privacy in cases where they were photographed in the toilet, or their medical records were sold to someone. If one appears in public, like it or not, they can be photographed by a stranger. Vogrin tried to justify his actions by saying that The Canfield Fair is private property, and they can restrict people’s actions however they see fit. That’s abundantly apparent at this point, but again please consider that the fair is a very public event that openly encourages photography.

    The Right of Publicity

    Again, there is no standard, spelled-out federal right of publicity, but is dealt with on a state to state basis. Lets take a look at Ohio’s Right of Publicity in Individual’s Persona. Chapter 2741.01 (A) of The Ohio Code defines an Individual’s Persona as,” an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value” There are restrictions on what can be done with an individual’s persona in Ohio, for example, one can not print and sell t-shirts with LeBron’s likeness coming out of a horse’s butt, with a caption reading,”LeBron is a piece of…”, However, someone could make and sell that t-shirt with my name and likeness. Why? Because my persona has no established commercial value. An interesting side note here is that one could paint a painting in Ohio showing LeBron and the horse, on account of Ohio CodeChapter 2741.09 Exceptions to Ohio’s Right of publicity in Individual’s Persona. (A)1(c): ” Original works of fine art”.

    Photographer’s Rights

    We’ve looked at the the rights of Individuals appearing public, and the use of their persona, let’s look at Photographer’s rights. A photographer has a right to photograph anything that takes place in a public setting, this includes, but is not limited to:

    accident and fire scenes

    children

    celebrities

    bridges and other infrastructure

    residential and commercial buildings

    industrial facilities and public utilities

    transportation facilities (e.g., airports)

    Superfund sites

    criminal activities

    law enforcement officers

    This right is protected under The First Amendment, Freedom of Expression. Once taken, that photograph becomes the copy-righted property of the photographer. Although anyone has the right to approach a person in a public place and ask questions about a photographer’s activities, persistent and unwanted conduct done without a legitimate purpose is a crime in many states if it causes serious annoyance. You are under no obligation to explain the purpose of your photography nor do you have to disclose your identity except in states that require it upon request by a law enforcement officer. If the conduct goes beyond mere questioning, all states have laws that make coercion and harassment criminal offenses. The specific elements vary among the states but in general it is unlawful for anyone to instill a fear that they may injure you, damage or take your property, or falsely accuse you of a crime just because you are taking photographs. Private parties have very limited rights to detain you against your will and may be subject to criminal and civil charges should they attempt to do so. Although the laws in most states authorize citizen’s arrests, such authority is very narrow. In general, citizen’s arrests can be made only for felonies or crimes committed in the person’s presence. Failure to abide by these requirements usually means that the person is liable for a tort such as false imprisonment. Absent a court order, private parties have no right to confiscate your camera, or film. Taking your camera or film directly or indirectly by threatening to use force or call a law enforcement agency can constitute criminal offenses such as theft and coercion. If someone has threatened, intimidated, or detained you because you were taking photographs, they may be liable for crimes such as kidnapping, coercion, and theft. In the event you are threatened with detention or asked to surrender your camera/film, asking the following questions can help ensure that you will have the evidence to enforce your legal rights:

    1. What is the person’s name?

    2. Who is their employer?

    3. Are you free to leave? If not, how do they intend to stop you if you decide to leave? What legal basis do they assert for the detention?

    4. Likewise, if they demand your camera/ film,what legal basis do they assert for the confiscation?

    Many Artists will only depict sterile, lifeless images devoid of real faces out of fear of being dragged into court. Likewise many Photographers practice a similar form of self-censorship. It could also be said that if one doesn’t want to be dragged to court because their dog bit someone, they shouldn’t own a dog. There are groups that are constantly, vigorously pushing to make pet ownership illegal, as well as a host of other rights we as Americans currently enjoy. Can you imagine what television, print, and visual arts would look like if were truly illegal to use an image of a person appearing in public? In the 80’s they started fuzzing out the face of people that wouldn’t sign a release.The people doing the fuzzing, were big money media companies, who decided to side on safety; not out of fear of being sued and losing, but to avoid the entanglement of having lawsuits brought up. After 25 years of seeing fuzzed faces, the general public is under the uninformed impression that it must be illegal to show faces. To date, no artist has been successfully sued for using the likeness of someone in a public setting.

    I’m ashamed to say that at the time I was attacked, and publicly humiliated, I was not fully aware of my rights. If I had been, things would have gone differently. As I’ve mentioned before, I really don’t care for politics, or political paintings. I’d really rather create paintings that celebrate what’s good about America, without having to rely on words and explanations. I’ve painted these two paintings pertaining to what happened to me in the hopes of raising your awareness of this issue. It’s an issue that becomes more relevant everyday, as most of us have a camera of some sort with us most of the time, and generally we feel free to take pictures at will, without fear of reprisal. It’s up to us to be aware of the attacks on our personal freedoms we enjoy as Americans that are taking place constantly on a variety of fronts.

  98. Would you want someone taking your poem, your writings, your designs and copying them to sell and make the profit? NO! Therefore the artist should, wherever possible and to avoid troubles later, ask for permission to photograph or paint a portrait of another person, if the art will be planned as an exact replica for resale or publishing. The portraits I have done were for the persons requesting them so were done at their request. I keep my portraits minimal however, though have done a few on the spot drawings of some known figures. (….how much must you alter or change to say it is your interpretation and not an exact copy of someone or of the photograph of them?Important question. And if you draw someone famous and give that art to another is that OK? What if they sell it later on and your signature is on the art?) I do take photos for my reference. So my suggestion in this day and age, ask permission when in doubt of how you plan to use the photo or later do as a piece of art. I see artwork of well known figures, done as drawings, paintings or sculpture all the time on many art sites and I wonder if those are OK (legal) and if permission was given by the famous person depicted. I gather in some cases the artist is taking chances, doesn’t understand the legal conditions or just doesn’t care as long as they might make a sale. Also, does this mean only ….famous people or anyone you draw and paint? There are important or famous structures that you cannot photograph or do art of and sell without permission rights. Check your copyright laws.

  99. WOW what a can of worms!!! I take many photos while sketching for reference and have used them without regard to getting permission to use the images of people. i just never thought of it. I was always in public places and never thought i would have to get permission. I will have to rethink my procedure now Great comments guess i will have to get permission

  100. A friend of mine was photographed unknowlingly and then his face wound up in a painting at an art show. He was not amused. This is an invasion of privacy, which can lead to a law suit. I do video for training purposes and here you also must have a release from anyone readily visible and identifiable. There are certain events which may lead to an exception, for instance a running race, where there will be publicity photos but I believe even there the entry form has some release wording. When in doubt, play it safe.

  101. We are talking painting here and not photography, which is governed by similar but different rules. Any painter worth his salt knows that everything and anything in a painting can be changed, and often should be for composition and content reasons. So if a painting contains a recognizable likeness, one has to assume that the likeness is not only purposeful but also integral to the content of the painting- in other words, the painting is then ABOUT the recognizable person, and not simply containing the recognizable person. If it were not so, the painter would change some features to make the person more generic.
    So if you are making a painting about a Joe, then that Joe is influenced by your portrait if published or exhibited. If the influence can be proven to be negative, then that Joe is entitled to compensation. If the painting profited from the use of Joe’s likeness, then the profits are partially owed to Joe. If neither is the case, then Joe has no legal say in the matter although it could be considered rude.
    In photography, a photo journalist is not required to get everyone’s permission to use their likeness before publishing the picture unless the picture identifies minors. But again, a lawsuit might arise to determine of anyone was harmed by the photo since we live in a litigious culture and in a litigious time.

  102. Privacy Laws of the U.S.
    “Members of the public have virtually no privacy rights when they are in public places. Basically, anyone can be photographed without consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, or inside a private residence. This legal standard applies regardless of the age, sex, or other attributes of the individual.”

    In my opinion, since this artist is only using the image as a sample, and it is not for sale, I say he is perfectly entitled to use it, if it is in good taste. It might be nice though, if he were to get a print made of it, and send it to the person in question, as a gift. Or once he no longer needs to use the image for marketing purposes, he could gift it to the person.

    Or…. you could go ask the person if she would be agreeable. It would be silly to start a rift (legal or not) if you are attempting to get work from that population. You might bite the hand that you are looking to shake.

  103. In this context, I’m almost agreed with what Mr. Robin said. If the photography or the painting is in good taste, then of course, there shouldn’t be any hiccups regarding the invasion of one’s privacy at all since it is a public appearance. Here, what you could do which according to my opinion is you could approach the person in particular prior to start using the image in the painting and ask for his/her permission to do the painting with the person’s image and myself also agreeable to Robin that it should not be used for any commercial purpose and after completion of the painting, he may present a copy of the same to the concerned model. For using it in advertising, legal procedure is to be done for making contract for using the person as a model in the campaign.

  104. My understanding as a photographer has always been that any photograph taken in a public setting does NOT require a release from people in a scene. However that said if one is featuring a person more prominently than others then to be on the safe side a release might be wise. However as a photographer if a scene is packed with people and there is lots of activity then getting a release is almost impossible, not to mention that one might not even know which image they are going to use. Furthermore using a photo for a painting seems more removed as the act of painting is a translation and the final painting is likely to have enough differences that it will never be considered an exact copy.

    But of course if either a photograph or painting is then used in a publication or appears in a show of the artists works then there is the possibility (but very remote) that the person pictured will recognize themselves. But they could also be flattered just as easily as feel their privacy has been trespassed. Bottom line may be that if the concern about this bothers you, the artist, then maybe a release will make you feel better. Without it there is really a remote chance of a lawsuit but then who would really spend time and money on a lawsuit, probably only if you are a major artist and your art is selling in the many thousands of dollars.

  105. A few years ago I had the opportunity to travel different places around the world. I thought I would like to have a project while doing so. I contacted an organization to see if
    they would be interested in exhibiting paintings of “Women Around the World” Their
    response was very positive. So I photographed women in many different countries. I
    always asked their permission to photograph. Many did not speak English, but I would
    point to my camera, and then to them to ask their approval. Most of the time they were
    delighted. Those who did speak English, I would explain why I wanted their photograph and they were always flattered and agreeable. I never thought about your question!!!
    Now, after reading the possibility of legal issues, I am sure I would ask for a written
    agreement of some kind. Unfortunately “Ignorance is Bliss” until someone figures a
    way to profit from your good intentions.
    I was able to exhibit the resulting paintings in several places and also sold most of them.

  106. Just an opinion: When I have a legal question like this, and there is not a clear federal law, I ask myself if I want my (potential) case being the one to set legal precedence. That spells big bucks. So playing safe may be the best route? If you want to proceed, then one might ask, in this case, is the pose a portrait (rather than a person as a part of a larger picture or message). And if it is a portrait, does that imply permission from the person was obtained (or should have been)? There are many images of people reproduced that are not “as a portrait”. That fine line (portrait or image with person) may be what keeps one out of court??

    In addition, I second the comment — do you want to bite the hand you are looking to feed you. The “horsey set” can be a tight nit group. A ‘good in’ can be wonderful. A bad entrance…. well that’s just not going to be helpful!!

  107. If it’s a photo, in a public place, it’s yours…… The paparatzi don’t pay royalties on even famous people in public.

    If it’s a painting, it’s your artistic interpretation of reality.

  108. While I am not a lawyer and do not intend my comment to be legal advice my understanding is as follows based on a Supreme Court Decision related to a photograph published a few years back. If I remember correctly they looked at two things: was it art and was there a reasonable expectaion of privacy on the part of the subject. They ruled that in this particular case there was no violation. As I read it the ruling generally held that if the image has artistic value(intent?) and if the person was in an environment where there was no reasonable expection of privacy then there is no issue. So I suspect that in your case there is no problem. However it is always best to have permission and most people in any competetive environment are flattered by the attention. If you can find out who she is contafct her and ask for permission then you know you have no problem.

  109. Aside from the legality of the issue, there seems to be an ethical side, too. As a painter who often takes references in public places, I always believed that I was safe using those photos to base future works on. However, in instances where the individual is recognizable, I make an effort to introduce myself (even if after the fact) and explain the scenario. Usually it runs something like this “I attended XYZ event with the idea of finding inspiration for a painting. I shot hundreds of photographs, and some of the ones that moved me the strongest included you/your horse/your dog/etc. I’ve painted my take of that day, and thought you would be interested in knowing that you played an integral part in my memory and interpretation. Here’s a jpg of the painting – I look forward to hearing your take on it and thanks so very much in advance!” If you can track the individual down via extraneous details in the painting and it’s a young person, chances are that parents could be upset, so it’s best to err on the side of caution and begin the conversation yourself, instead of waiting to hear from the partie(s) depicted in the painting. Then, based on their reaction, you can introduce the idea of a reproduction or whatever. Just my 2 cents, Kim

  110. What about an artist who continually paints famous images like Elvis, James Dean and Marily Monroe, and then exhitibs them at galleries for monotary purposes, for sale, or awards in competitions? Also, what about an artist that also reproduces an old master, but with such slight differences that the painting is still recognizable? Aren’t these images, for instance, copy righted and are usually property of family or corporations or museums? Let’s say that the way they paint the images are wrought as contemporary images, but are also definately recognizable. Where would this person stand? What is the responsibility of the gallery owners or board of directors for allowing this artist’s work to be exhibited?

  111. Actually,I believe you do need their permission,unless it’s the model in your art class.I’ve run into problems with my Shooting Stars painting I did fo a high school project.I have about eight portraits of dead rockstars,including John Lennon.I’ve run into the celebrity estate laws on zazzle.com-where I can not sell their image.Actually I think you can paint anyone you want,as long as you don’t try to sell it,at least commercially.You might want to contact this person,if you can,to get written permission.Who knows,they may be so pleased,that they will buy it for themselves.Disclaimer Note:This is just my take on things-I could be totally wrong on the legal end of things.Better safe than sorry.

  112. Have you asked her permission to use her likeness on your brochure and at the show? Maybe she’ll just say “Yes” and want her name in the title of the artwork. Or if the answer is no, cancel the brochure and offer to sell her the painting and it’s your loss.

  113. I think if you are in a public place, pictures of you are fair game to be in a picture. (except if you are a minor). However, if you are making that person the subject of the painting, it is common courtesy to ask permission to take the picture in the first place. ” hi I’m an artist this is such a great scene I’d like to use it for 1 of my pictures do you mind?”

  114. I used to be a photographer for New York Magazine.
    The legal rule we followed was you can use a person’s image for news purposes.
    For art purposes, you’d likely win in court if it’s not defamatory. But do you want to go to court to defend it?
    We always carried image releases for art or news purposes and tried to use them.
    Most people were happy to help and may be flattered.
    The only people who refused to sign were celebrities because their pictures bring them income, fame, or notoriety. They referred us to their agents.
    An artist can easily alter the likeness and have no problem.
    I do it often, now that I’m painting.

  115. This is a very good subject. For many years, I have been taking candid photos of people to use as reference material for my realistic watercolor paintings. Often times I spend a full week, every day, photographing people in New York City’s midtown area. I have been doing this under the premise that a person relinquishes some personal privacy when the person ventures out into a public place. Isn’t that one of the essential differences between private and public places.

  116. I’m so glad to learn of legal background and aside from the legal perspective it seems to me that I’d always first ask permission to paint someone. It FEELS like the right thing to do. I would have wanted to be asked. Now that a painting exists, I’d either just change the features … OR I’d probably contact the person and tell them that I have painted them – I’d give them two options: a) I’d offer to change the features or b) I’d ask them if it’s ok with them to show the painting AND I’d like to give them the painting (I’d be ready to email them a photo of the painting b/c they’ll probably like to see it before they decide! What if they’re in the witness protection program?!!)

  117. I have always simply asked the person for permission. No one has ever said “no”. The icing on the cake is I have made new friends and clients from this practice.

  118. This question demonstrates one reason why every artist needs to have a lawyer on retainer. I have one, and I am glad to have someone to whom I can address questions just like this one.

    How did this happen? I am a lawyer myself, although I haven’t practiced since 1985, I know enough to suspect when danger might arise.

    From my former life as a law school career adviser, I knew an excellent small business, copyright and entertainment lawyer, Blake Iverson of Friedman Iverson PLLC. Some years ago I gave him $200 as a retainer. Since then, I have asked him a few questions, including some about contract language and how to acquire an assumed name for a new and slightly subsidiary business. This has been some of the best money I ever spent.

    The best question which saved the most hassle was one that I asked on behalf of my food blog. I had wanted to use the spines of my 800+ cookbook collection as the wallpaper for the susan-cooks! blog. His succinct reply was: “Don’t do it. You will violate the copyright rights of every author on the shelf.”

    My observation from nearly 30 years of watching the law business is that by the time a non-lawyer thinks that she has a tiny legal problem, she is in for a big, bad surprise and an expensive legal bill.

  119. Some years ago I attended a portait workshop (photo) where one of my classmates was an intellectual property attorney. The subject of releases did come up. Basically, as commented earlier, in the US you have no privacy rights when you are in public. Period. Just go to the gossip page and you will see this in action. This is different in other countries, of course.

    A release is nice if you can get one and if someone asks you not take their picture you might want to be nice and not take it (like when the policeman asks you politely to refrain from taking a picture while he beats up the protester).

    For the horse show, the issue is clear — the rider was a participant and had no expectation of privacy and has no ownership of his or her image.

  120. I’d like to suggest that there’s another way to frame the question.

    Is it right to appropriate the image of a “young lady” (or anyone else) without that person’s permission and do with it what you like-even if that image was captured in a public setting? Even if it’s legally “ok”, even if it’s the convenient thing to do, is it the right thing to do?

    You’re considering using the young lady’s image for your financial gain ( using it on portrait brochures and probably in advertising). Does it seem right to have her image contribute to your for-profit efforts and not compensate her for that contribution or even ask for her permission?

    Using the young lady’s image in an equestrian portrait seems harmless enough. But what if that same image was appropriated for us in a painting that was not so “harmless”. Would that be “ok”?

    I’d like to suggest that just because we can do something without being sued doesn’t mean it’s the right thing to do.

    Why not show some respect for the subject and simply ask for her permission – even if you don’t have to. If she says no then adjust the image so it doesn’t reflect her likeness – after all your an artist. Doesn’t that feel like the right thing to do?

    So my non-legal opinion is … do the right thing.

    Respectfully,

    James Moore

  121. Absolutely you do but the destinction is as follows: In the instance of a celebrity or public figure you don’t need a “model release” because there is no expectation to privacy as they are in whats referred to as the public domain as per there status in life. As far as private citizens are concerned, you do need a “model release” for those persons because in there position there is an expectation to privacy given that they are not in the public eye. For practical matters though the odds of someone seeing your painting and recognizing themselves in your painting, knowing the law and having the money to litigate are preety slim. Even if you do get a model release, you need to specifiy the use of their likeness ie., a one time painting, for commercial purposes or as a derivitive right such as print reproduction of the newly created painting are just a few examples. You can see how techinal it can get though. The easiest thing to remember is 4-1-1989. This is the date of the modern copyright convention that esablished the new standards. Specifically from the point of creation and that point for your work is copyrighted by law and you retain all rights to the original and all derivitive rights for your work unless you sell parts or all of those rights. Additionally from the moment that you see either your original or a derivitive version of your art you have 100 years to file suit. Typical settlement usually involves surrendering of all copies to the CR holder as well as punitive and progressive penalties to the perpatrator. Prior to that date all works were copyrighted for thirty years from the point of their creation. While I am not familiar with the blurred Benjamin painting at the top of the discussion it looks as if it is old enough that it could have been shown in it’s entirity for purpoes of this discussion. And if it were created after 4-1-89, it is still in violation, because guess what it is still a derivitive version of the original and needs permission from the originator of the work to disply it in that version.

    Regards,

    Randy Ford
    http://www.randyfordamericanartist.com

  122. I recently sent paintings to be juried for a show. In the prospectus they asked that if images of people were used to send written permission by that person for their image to be exhibited. This is the first time I have had a request like this. It makes me think that this may be becoming a problem. In answer to the question whether famous personalities images can be used, I think one does need permission to use a famous person’s face as part of a business product or in advertising. It is understood that dead people cannot give permission so use of their images is somewhat more open but still if there is a foundation in their names still holding the rights to their image it can be a legal problem (i.e. images of Elvis). Even a cartoon image like Mickey Mouse cannot be used without permission or Disney will sue.

    The painting in question is not a general photo or painting of a public place containing people, it is a portrait. It is going to be used as advertising for portraits. I think once the image is specific, focused on one person with the clarity of that focus used as advertising, you would best serve your own intent by going to the person and asking their permission to use the image. Otherwise change a few features to make the portrait look less recognizable as that specific person while keeping the portraiture looking as if it is specific. Change the color of the hair and the jawline or nose some. Darken the horse a little since horses too are easily recognized. It is easy to do this and then to feel free using the image in your advertising.

  123. Years ago at an art forum, where this was discussed, someone said that you always have the right to paint a famous person but that “regular” people are expected to have more privacy and therefore you need their permission to paint them, or you change the likness enough so that the person can not be recognized from your painting. I always have a couple of releases with me if I am painting or have my camera with me. I always have my models sign releases and the parents of any children that I paint sign releases. As some have said better to be safe.

  124. Most of the groups that I belong to and the lectures that I have attended on using images relate back to copy right law. There are some real surprises on public buildings and non public figures. I suggest that you get written permission- later it could boil down to money earned. You might try the Volunteers Lawyers and Accountants who specialize in the arts in your local area to get a free opinion.
    Erlene

  125. The answer is yes you need permission and you would also need the photographers permission as their photos would be under their ownership and copyright. The complexity of the copyright laws were changed under the Bush administration especially for Artists. I had to turn down a logo assignment after I requested the client provide permission from the original photographer to use as art. The client didn’t want to provide that, so I declined doing the work. A rule of thumb is if you didn’t take the photo then you shouldn’t use it without written permission. Copyright use and infringement can become expensive if you are in the wrong.

    Scott L. Hendrie
    scottlhendrie.com

  126. I believe that you have to have permission from the individual to use his image if you are going to publish. Famous people are exempt from this because they are already in the public image. It is the same if you take a picture and publish it in the news. Famous personalities do not have the right to protest because they are already published, but private individuals have more privacy to their image. At least that is why the pavoriti can steal their images and get away with it. When you become a public image, you give up your right to privacy. Not so as a private citizen.

  127. Actually with the internet and cell phone cameras, the likelihood of someone finding out and not liking that you have used their image is better than you might think. I think some of the replies in your comments attest to this. In today’s world of lawsuits, I would recommend that artists always obtain permission when using the image of a person. The only exception might be if it is a photograph taken of a crowd of people and their faces are not particularly recognizable. When I say photographs I only refer to photos taken by the artist. I would avoid using all photographs taken from other sources except for clearly reference material. When used as a reference, the image should not be copied directly but rather it is best to work from several photographs and possibly combine features. Never should an aritist use some elses composition when doing this. When I say reference I mean minor reference not the focal point of the image but instead secondary parts of the image.
    These are the guidelines that I use with my students and if artists out in the professional world are doing otherwise it is no wonder my students are often confused on the matter. That said, I believe it may be a different issue if the work will not be sold (ever) or if it is used only as a study and will be kept in the artists private files. In the case of student works they are often used as studies but the problem arrises when used for competition. Since many of my students enter competitions, this is my general rule for ALL finished artworks.
    If you follow these guidelines you should not run into any problems. I you have been doing otherwise then change your practices and if you have unsold works out there that do not meet this criteria I recommend that you pull them and replace them with something that does. Many artists have developed these habits but secretly know they are cheating. So stop doing it.
    The photos of the famous people were taken by specific photographers and constitute their body of work. I think the issue with the Obama poster illustrates the problems with that issue but the same goes for subjects that are no longer alive. Do you want to be known as an artist that copies other people’s photos?
    I too was a little hazy on this for a long time but I think if you adopt these guidelines it will change how your work is viewed by others and even how you feel about creating it.

  128. Shirley has pretty much spelled it out. You will need a model release from the person you painted if she is still recognizable. If you are using the portrait for editorial purposes, you don’t need one because the law states that the right to privacy is superseded by the right to be informed. It has always been my understanding that media matters not. Having said this, the rights around this have become more complicated. I also know that some photographers don’t even trust a release (although I don’t know what else one would use..). For some reliable information, check ASMP’s website, http://www.asmp.org, under Legal Community > Releases Tutorial. Yes this is a pain but I’m not sure I’d be ok with you profiting off my image and not paying me… (PS According the the San Francisco Models’ Guild, artists’ models that are being paid will not require a release!)

  129. It is my understanding that a photographer needs a permission. I carry forms for people to sign to give me permission to use their likenesses as photogtrapher. The form is called a “Model Release Form” and on it the person provides date, name of model (signatuire), address, phone, signature of parent or gardian if a m inor, and witnessed by (usually me). When I take a pictyuire I get the person to sign ri8ght then and there. That way I do not have to huntr them down if the picturw is good enough to show. I have one of a “Universal Child” that took first in a state-wide show some years ago that the parents did not buy. But with the relese it was fine for me to show it and if I want to sell it I will be able to.

  130. I’m with “Robin Neudorfer October 17, 2011 at 12:37 am”. Except that in a painting it is the artist’s “impression”. It is not the person, it is chemicals on cloth or paper or whatever.
    I wouldn’t even go so far as gifting them a reproduction as it seems an admission of guilt .You don’t owe them anything more than you owe a sailboat with a number on it. They should be flattered you noticed then and them paying a premium for something in their “image” is their proper response…
    If it is a salacious or intrusive image, you are risking more but, it is not as compromising as a photograph. ( Unless you are Salmon Rushdie).
    If you are marketing such an image and you entitle it with a person’s name, it is tasteless, and bad marketing, as one of us remarked, and reflect, can it do you more good or more harm? Especially if trying to appeal to a certain market.
    We have more to worry about than this. If I wanted to be a lawyer, I would have become a lawyer. As well, a certain notoriety serves many creatives. And many creative people are unethical or we would be accountants, lawyers or preachers.
    Recognizable images of many entities appeal to collectors. Know your market and remember those famous words, “What, Me Worry”.
    Bad River Bobby

  131. Whoa! There’s a great deal of confusion out there about celebrity images. If you are using the image of a celebrity for any Commercial purposes whatsoever, you must have a complete release. News? That’s a different story. If a public figure is in public, and you use their image or portrait or likeness for attempting to make money in any way, you will be in deep kimchee. And the same thing holds true for non-public images. You can’t make money off of someone else’s likeness without their permission … whether it’s art or not. It’s their image, and they own the right to decide who gets to make money from it.

  132. In the case of a School of the Art Institute of Chicago student depicting the Mayor of Chicago dressed in women’s underware and being given merit by his instructor and the school, I think all concerned should have been admonished for poor judgement, if nothing else. The incident ended up causing the Art Institute to close it’s Sales and Rental Gallery, when in truth they were completly seperate entities, having nothing to do with one another. Slander and blackmail rather than flattery would certainly have a lot to do with intent in using someone’s image in a painting; permission or not. Good judgement, like common sense isn’t very common these days.

  133. There was a case of a lawyer who took a photo of a policeman abusively beating someone with his cell phone. It turned out the lawyer was arrested! You can not photograph any law personnel because it might compromise his cover.

    I believe there is a rule about 7 or more people in the photo you do not have to get releases. One potter was sued by Chrysler for having the 1/4 ” of the Chrysler building in his skyline circling a collection of plates he had created.

    There are religious issues as with the Amish- some people just don’t want their image engraved across your canvas without their permission.

  134. I didn’t read through all of the comments, however, as someone who is a competitive rider and also an artist, this discussion comes up quite frequently on some of the horse forums.

    A lot of equestrians, especially professionals are picky about their image and what photos can be used or images taken and also represented. A lot of the shows, especially big ones, hire professional photographers that have exclusive right to take photos and have signed waivers from riders. It’s a big deal. These are usually photographers who have knowledge of what looks best in the particular discipline being ridden.

    In the case of the person who submitted the question. The ethical and professional thing to do in this case, would be to ask the rider for their permission to use the image first. You never know if the horse that is being ridden is for sale, or if the image captured is one that the rider wants represented. What can look like a nice, pleasant ride to an untrained eye, might be a glaring error to someone in the know…especially for some disciplines like Dressage, Western Pleasure, Reining, etc. Or, in the case of a horse for sale, it might be against the terms of sale between the rider and the owner, where the owner has paid for professional images to represent the horse’s sale.

    The person asking the question made the remark about trying to break into the “horse set”. Horse photos are notoriously hard to capture, and the likelihood of capturing a bad moment, where the horse doesn’t look quite right, is very high. I would personally not hire a professional that used an image that had not garnered permission or that didn’t have knowledge of the event being ridden.

    Hope that helps.

    Christina

  135. I think the same standard applies that applies to using any recognizable source image: you do not need permission if you create one unique, original piece of art. You DO need permission if you reproduce that art, as prints, giclees, whatever, for sale. This has been tested in court, notably in the 1970s when a well known illustrator used scrap with a recognizable face to create a magazine cover. He lost. If he’d just painted one unique, original painting, there would have been no challenge. But reproducing the image– in which a recognizable, perhaps well-known face is included– for monetary gain is a different kettle of fish.

  136. You do not need permission to produce or exhibit art with a person’s image. You do need their permission to use it for commercial purposes such as advertising, brochures, calendars and book or magazine covers.

  137. A lot depends on the definition of ‘likeness’. If you are using the persons real face I think you need to ask permission and if they agree, have them sign a model release. This is a simply form that you can create yourself and then both of you would sign and keep it. I would be specific with the ‘what and how’s’ so they know you are not going to use it for anything illegal.

  138. While at a street fair, without my permission, a picture was taken of me by a photographer who used one of those lens that showed every pore–from a city block away. Lo and behold! The next fair I attended the photographer was a vendor. He asked me if I wanted to purchase the photo he had taken of me. I gave him a piece of my mind.
    For spiritual reasons, it is customary for the people in some cultures to refuse to have their images captured in a “box.”
    I enjoy taking pictures of people, and including them in my art. It’s the gesture or form I’m attracted to, not their exact image.
    The law is: Respect. Consideration. Mindfulness of others.

  139. Play it safe is what I always say. First of all it wouldn’t hurt to talk to the artist first.
    My friend and I get together and work on our art once a week and we can work the same idea or piece of art and It never looks identical. Because we are all different and view our art differently its always best to talk to that person first. For some of us its a compliment and we don’t have a problem with it but for others its totally the opposite.
    Good luck and thanks for asking.

  140. I’m at lost for words when some artist want to that a photo of someone or something personal of someone else such as: personal property, animals, ect. as reference for a painting for profit, (without asking permission) and then after the fact say, I wonder – should I have first asked permission, or maybe see how far can I go with this – just to much trouble. Its like common sense went out the window on this one. I met an artist many years ago that would take a part of a photo from a mag. paint and sell it, or add it to one of this paintings as his very own idea. He said he made good money doing this, and nobody was the wiser. The problem. ” I did. ” I think its moral values that comes into play on this one, or lack-off that all of us should question. Its not rocket-science you know. Not saying that the artist in question on these comments is not a good person. I’m sure we all want to do the right thing. And the right thing to do is. “Ask first.” Say, is it alright to use your likeness or anything personal in one of my paintings. I’ve seen that nine out of ten times people will say yes. But to be on the save side, have them sign a release. “Be nice and you will get your wish.”

  141. I don’t know the answer, but Andy Warhol made a fortune selling painted over prints of photographs of celebraties. Even if it is illegal the lawsuit might be helpful publicity.

    Sorry for the late comment

  142. I was very surprised about ten years ago when I walked into Fritz Scholder’s studio and saw a very large painting with the two of us together!! The painting was a complete representation of our relationship–he painted himself in the front of a large rock holding a book–which was imparting knowledge to me and also the large rock represented that he was my source of strength. It was a very significant painting that I see online from time to time. I don’t know what happened to it after his death, but it sure would be nice to get half of the proceeds from that sale!!! Good luck, Dianne…

  143. If the person photographed was taking part in a “public display” such as a parade or public event, you should not need a model’s release or written permission. However, on the website of our pastel group at http://www.psnr.net on the pastel tips page there is a link to a models release anyone is free to download and read.

  144. Well, it’s an ongoing question among photographers, and I’m sure artists – all around.
    The determination is structured by the U.S. Copyright laws (in the U.S), and they have
    a series of online seminars regarding all aspects of copyright.
    That said, some wise people in the photo field have reminded us that even if the art is used in a legal manner, and one would win the case in court, who in their right mind would submit themselves to years of legal and let’s not forget – financial consequences, fighting a usage lawsuit?

    In my case, since I sometimes use images from my career in photojournalism as elements in [fine art] collage, recently I changed a rodeo photograph shot in
    the 1960’s with the rider being thrown off a steer, and his face prominent in the
    foreground. The finished piece is in front of the NY Stock Exchange, and titled
    “End of the Bull Market”. Rather than take the chance on a possible law suite
    I photographed my own face in a mirror, pretty much in the same position and expression, and superimposed it in the final piece. A painter could do something
    similar much more easily. No lawyer’s needed!

    Clay

  145. I’m careful to avoid using likenesses in my art and books except where I think the subject will be very pleased. I can’t imagine painting a person without their consent and then using that image to sell my other work — especially in this day of instant communication. The image will travel around the world faster than consent could; the painter is setting himself up for a fall.

  146. The key issue here is “reasonable expectation of privacy,” and specifically what “reasonable” means. It means something vastly different for public figures than it does for the great unwashed. People who work for institutions who routinely use such images have consulted with the legal establishment and have the means to fight a warrantless challenge. Unless it is Lady Gaga or the president, the rest of us had better make sure we get permission. If you want an idea of how complicated this question can be, just have an informal conversation with an attorney.

  147. Several years ago my husband and I (we are musicians) were performing at an outdoor event and someone took a picture of us. That happens a lot and since we were performing in public I had no problem with it. A couple of years later a friend of mine saw a painting of us in an art gallery catalog and showed it to us. It is clearly us, definitely has the realism of being painted from a photograph (it even shows our squinting expressions from having the sun in our faces!), but the background has been changed to a dark color with fantasy elements painted in. The painting was for sale for around $3000.00 dollars.
    We contacted the gallery asking to be put in touch with the artist but we never heard from her. We have never pursued any sort of action beyond that, and I don’t know if we even have any right to. But it has always felt wrong to me that she did not ask for our permission to put our likeness in her artwork. I always assume that folks taking pictures of us performing are doing it for their personal photo albums and that is fine with me – I am actually flattered. However, I feel if someone is going to put our picture out in public on display, that it is a courtesy to get my permission to do so.
    Are there any laws governing this type of thing?
    Do artists themselves have “unwritten” laws about it? For instance, I have friends who write their own music and play it, but don’t publish. However, if I want to perform their song I always ask permission, and always make sure my audience knows who wrote it. I feel it is the least I can do as professional. So what about this artist? Is she being professional by making money off of my image without even asking me? To be honest, I just wish she had said what she planned to do and asked if we were OK with it. We would have been.
    I know this is a long post but I thought it might make some artists think about this practice if they heard something from the unwitting “model’s” side.
    Sincerely,
    P. Brunke

  148. Ya’ll are crazy! There is no law against painting a pic of a complete stranger and using it any way you want to. One of the most famous pics in the world is of that sailor kissing that random girl in NYC after the end of the war. That picture has been used millions of times with no compensation given to the subjects of the work and no permission given from them. And guess what, that girl wasn’t even his girl friend!

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