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View Full Version : Who owns copyright of photo of a person in public?


Noble
02-14-2001, 03:05 PM
I'll give this one another shot...

Can I sell a work of art using a picture of a person (in public) that I took and used for reference, assuming the person is completely recognizable?

Any ideas?

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Cheers,
Noble
http://artofnoble.com

Roan
02-14-2001, 03:12 PM
You'll have to check with a legal eagle, Noble, but I'm pretty sure that's a HUGE no-no.

Even the 6 o'clock news has to get releases from anyone who might appear on camera.

In the case of a minor, be very careful.

Seriously, I'd ask a lawyer since this is about a minor.

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cagathoc
02-14-2001, 03:16 PM
Peopleís Right of Publicity

What if the subject of the photograph is a person? Under what is commonly known as the "Right of Publicity," individual persons (or in certain states the estate of dead persons) are entitled to control the commercial exploitation of their image. Commercial exploitation includes advertising or selling products, goods, or services for money or any venture that is designed to generate profit or convey a product endorsement and does not entail a legitimate educational or editorial reason for the use. (There also exists a similar but separate doctrine known as the "Right of Privacy" which acknowledges and protects peopleís right to be left alone and not dragged into the public spotlight).


The Release: Publicity Limitations by Contract

If a personís image is in a photograph that the publisher intends to use in a commercial manner than the publisher generally needs to obtain the consent of the person whose image is in the print regardless of who owns the photograph. This is similar to the different layers of rights in photographs of art. This consent should be through a written document called a "release" and is always necessary when the photograph is to be used for commercial purposes or in a way that could depict recognizable persons in a false light which may give rise to a legal cause of action such as an invasion of privacy suit. People appearing in photographs may allow use of their image with certain requirements, such as that the image cannot be altered, or downloaded. It is up to the publisher to obtain such permission, not the photographer.


You need to obtain the subject's permission in writing.

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Cindy~


[This message has been edited by cagathoc (edited February 14, 2001).]

Noble
02-14-2001, 03:19 PM
Ok, I figured this scenario is so common that the answer (in the US anyway) was "well known". But, I understand.

Certainly I understand about publishing photos (e.g. news), but art based on them was where I wasn't sure. Also, I didn't ever get model releases on life studio models either, and I assume that those works are saleable? Yes?

(Not that I would or could sell this or that image, but maybe someday I'll get there)

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Cheers,
Noble
http://artofnoble.com

cagathoc
02-14-2001, 03:26 PM
The life models are paid for their work and it is understood that the artist will be using their image in their work - it's part of the job, although some artist's also obtain written permission from models.


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Cindy~

Noble
02-14-2001, 03:30 PM
Originally posted by cagathoc:
You are supposed to obtain the person's permission.

I agree one should. Assuming I could ever find that person again I would ask them out of courtesy and respect if nothing else. It would be weird to "stalk" them down and try and ask etc, that itself might freak them out even more! And I would feel kinda weird doing it! http://www.wetcanvas.com/ubb/smile.gif I can't even draw people I see in public for fear of upsetting them or looking at them too long, even though they are so interesting!

My question was more of a "legal" nature vs a moral one. I'll continue the discussion just out of "fun" because I know that a lawyer would really be the best place to go for a definitive answer. So, just to keep some discussion going and raise a different slant...

At the moment a shot is taken, one might not even know or conceive of the artwork in question and since the subject is in a public place, having the ability to even talk to them might be impossible... (e.g. zoom from across a barrier or highway or who knows what else, maybe the person was incedental to the picture and determined later to be a subject, or not even known to be "in" the photo)

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Cheers,
Noble
http://artofnoble.com

cagathoc
02-14-2001, 03:32 PM
On the other hand, remember this:


... Tiger Woods filed suit against an artist who sold copies of his own painting of the golfer, to stop the sale of the prints. Artist Rick Rush has been selling copies of his painting of Woods winning the Masters tournament in 1997, but the golfer claimed in his suit that the sale violates his right of publicity. A Cleveland judge threw out the case, saying that trademark or property rights laws do not protect Woods' image and that the First Amendment allows Rush to paint the golfer and profit from his work.



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Cindy~

cagathoc
02-14-2001, 03:34 PM
You're right Noble. I have also read, "if possible get the person's permission". I am no expert on this, unfortunately, but I believe there is room for debate even in the legal realm of these issues...



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Cindy~

Noble
02-14-2001, 03:38 PM
Originally posted by cagathoc:
On the other hand, remember this:

... Tiger Woods filed suit against an artist who sold copies of his own painting of the golfer, to stop the sale of the prints. Artist Rick Rush has been selling copies of his painting of Woods winning the Masters tournament in 1997, but the golfer claimed in his suit that the sale violates his right of publicity. A Cleveland judge threw out the case, saying that trademark or property rights laws do not protect Woods' image and that the First Amendment allows Rush to paint the golfer and profit from his work.

Regarding your earlier good info regarding copyright and photos and prints, it seems to focus on mass media kinds of concerns and photos, more than derivitave works from a photo.

Along the line of the Tiger case, lets say that an artist has a photographic memory and from imagination after seeing a person paints a portrait (very painterly and obviously not a photo) of that person in no compromizing way, just a 3/4 view or something. Can they sell that original legally without permission? Is the *face* of the person copyrighted?

Believe me I'm for privacy, but, when I'm in public I'm not in private, so hmmm.

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Cheers,
Noble
http://artofnoble.com

cagathoc
02-14-2001, 03:38 PM
A person's image belongs to them whether it is a photo or a painting... I think the People's Right of Publicity still applies.

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Cindy~

cagathoc
02-14-2001, 03:40 PM
I am inquiring via email with someone who IS an expert and will get you a better answer!



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Cindy~

carly
02-14-2001, 03:42 PM
I think recognizable is a key word in that question, Noble.

If the photo were going to be reproduced and used...yes, permission must be obtained.

If the photo is used for reference only...no recognizable likeness of the person...then how would that person even know it were he or she?

I photograph people all the time for reference...usually with a zoom lens...sometimes I ask permission, but with a large group I do not ask permission. Most of the time I want to catch a scene with a figure who is standing or sitting a particular way....not that person in particular.

I know that if I use a "body" in my painting, there is not even a slight chance that I am using that person's likeness.
carly

(If one painted photorealistically...one would encounter the same problems with right to privacy)


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"Everything is not art and Art is not everything, but it comes close."....carly

Noble
02-14-2001, 03:57 PM
Originally posted by carly:
I think recognizable is a key word in that question, Noble.

If the photo were going to be reproduced and used...yes, permission must be obtained.
[snip]
(If one painted photorealistically...one would encounter the same problems with right to privacy)

So in my case, the *original* pastel portrait of a girl that I did from my photo and posted in critiques, I can't legally sell or put in a show without finding her and getting something in writing? What about posting the image (of the pastel) here or on my website, is that "legally" considered reproduction? (I know, ask a lawyer, but this is an intersting discussion so I'm not taking any answers here as legal advice...just for entertainment purposes only) http://www.wetcanvas.com/ubb/smile.gif

The pastel certainly isn't photorealistic, but it is a recognizable rendition of her likeness more or less, btw.

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Cheers,
Noble
http://artofnoble.com

barb dougherty
02-15-2001, 12:38 AM
There are many sides of this issue, and its a good one for a lawyer. Here is what I know about this but I may not be informed of all the laws and precedents. Selling copies of a painting or selling the painting itself may be different and have different laws apply. . But as far as I understand the act of offering a visual image for sale creates different positions for artist and the model - it is fiduciary relationship not just a working relationship. The end result of the different relationship is that a model release is required. Model releases are critical even when someone is a paid model in a studio. Also the privacy (not just the copyright)of a person has to be respected. The Tiger Woods issue may have been decided for the artist because Tiger Woods is a public personality. It also may be that Tiger did not protect the copyright of the images of that appearance. One would have to read the legal decision to know the grounds for giving the artist the right to sell the reproductions. Also copyright violations have to be intentional. If they are unknowing they may not be violations of our laws. There was once a case of a San Jose Newspaper being sued for copyright violation by the NFl when they published the hands of Joe Montana catching a football - front page news. As I understand the decision it was in favor of the newspaper because the NFL did not prohibit the use of camera's at the event. This could also be the case with the Tiger Woods situation. The statement that the law and morality are different is not one with which I agree. I think that morality is not all that different than the law. Each of us has a right to privacy, and the artist has a need to capture the human being as a visual image. These two needs can co-exist if permission is a factor in the equation. Keep in mind that even very famous buildings sometimes can not be sold as reproductions of a painting without permission from the owners or agents of the owners. I think there was a case like this with the round Capitol Record Building in Los Angeles. The issues are privacy, copyright and freedom of speech- these are wonderful problems for a world to have to balance
barb dougherty

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barb dougherty

Noble
02-15-2001, 12:52 AM
Originally posted by barb dougherty:
[snip]
The statement that the law and morality are different is not one with which I agree.[snip]

Thanks for the info.

I'm sure one can find many examples of laws that were based on previous morality, which are not shared by current society, yet the law still exists.

I agree that they are related, but it depends on the law. That's the only reason why I made the destinction to focus on the legal angle.

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Cheers,
Noble
http://artofnoble.com

pixelscapes
02-15-2001, 12:44 PM
Check this link out. It's about photos specifically, but the same ideas would apply to other media reproducing somebody's recognizable image... http://www.publaw.com/photo.html

Or this one, http://www.pdn-pix.com/businessresources/modelrelease.html

As near as I can tell, apparently in non-news photographs (news photos being those that educate or inform, thus covered by fair use), depicted individuals can sue for invasion of privacy unless they've signed a model release waiving those rights.

The moral of the story seems to be either that the person can't be recognizable, or you shouldn't be painting from a photo without a release in the first place? I guess?

-=- Jen "Does the WC anniversary project break copyright?" de la Cruz
http://www.Pixelscapes.com and http://www.BewareOfArt.com

pixelscapes
02-15-2001, 06:34 PM
Originally posted by Noble:
Thanks for the links and I've read them. There is no mention of original art in any of those articles, and I'm not sure those laws are quite applicable. The general ideas certainly seem relevant...

Glad you found a link. While it's true they don't mention original art, keep in mind that the laws say "likeness", not just "photos". So I mean... if it's recognizable as the person, then it's a likeness whether it's a photo or a painting or whatever.

If a tabloid hired a Bette Midler lookalike to pose for sex photos, Midler could presumably sue the tabloid anyway... since the tabloid is obviously trying to use her image. She already actually won a case where somebody hired a different singer to SOUND like her on a recording.

Anyway, remember that no matter what the law is, unless you're super careful you can still get sued. That's the problem with potential litigation... even if you can "technically" get away with it in most cases, you never know when those kid's parents are gonna decide to come after you. Maybe they heard a rumor you sold a painting for a million bucks and they decide you're rich now? http://www.wetcanvas.com/ubb/biggrin.gif

-=- Jen "Psheek!" de la Cruz
http://www.Pixelscapes.com and http://www.BewareOfArt.com



[This message has been edited by pixelscapes (edited February 15, 2001).]

cagathoc
02-15-2001, 07:24 PM
fess up Jen - didn't you really marry your hubby just so you could have that super cool last name>>>>? de LA CRUZZZZZZZZZZZZZ

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Cindy~

pixelscapes
02-15-2001, 09:09 PM
Yeah Cindy, that's right. I was really happy to get rid of my old last name! It was "Gagne". Pronounced way, way too much like "Gag-me".

As for de la Cruz, yes. I think it makes a much more <a href="http://www.pixelscapes.com/digital/localsourcepics/example_closeup_signature.jpg">interesting signature</a>. Tee hee hee.

Besides, it's my husband who has the really cool name. Orlando de la Cruz. "The Golden Land of the Cross". Imagine an announcer saying his name on stadium speakers: "OrllllLLLAANDOOOooo DE LA CRUUUUUZZZZ!!!". http://www.wetcanvas.com/ubb/biggrin.gif

Anyway, that was VERY off topic. Noble, what's your end analysis of all these links and discussion? Do you feel like your original question was answered, what will you do with your choirgirl pic, et cetera?

-=- Jen "Reverb" de la Cruz

Noble
02-16-2001, 01:50 AM
Originally posted by pixelscapes:
Check this link out. It's about photos specifically, but the same ideas would apply to other media reproducing somebody's recognizable image
[snip]
The moral of the story seems to be either that the person can't be recognizable, or you shouldn't be painting from a photo without a release in the first place? I guess?

Thanks for the links and I've read them. There is no mention of original art in any of those articles, and I'm not sure those laws are quite applicable. The general ideas certainly seem relevant, but maybe there is more specific law that applies. I'm going to keep hunting around. Searches from those links proved fruitless for me so far.

Oops, not true, I'm adding this here, apparently good guidance along these lines comes from "rights of publicity", a nice article can be found here thanks to the site you gave me: <A HREF="http://www.publaw.com/rightpriv.html" TARGET=_blank>
Right Of Publicity</A>

Thanks a bunch!!

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Cheers,
Noble
http://artofnoble.com

[This message has been edited by Noble (edited February 15, 2001).]

Noble
02-17-2001, 01:21 AM
Originally posted by pixelscapes:
[snip]
Anyway, that was VERY off topic. Noble, what's your end analysis of all these links and discussion? Do you feel like your original question was answered, what will you do with your choirgirl pic, et cetera?

Since I am so far away from being able to sell anything, it isn't much of a concern but it does have an influence on what I might do with my digicam. In general, I wouldn't feel concerned about entering something like it in an art show that has a fairly "low" degree of exposure. I might be more hesitant to enter it in a local cafe like Borders (in the same mall where she performed for example).

I'm not too worried because the work I would do says nothing personally about the individual (especially since I don't know them) and does not put them in any context other than as a subject of a portrait. It certainly isn't used for advertising or any other purpose, and if someone stole the work and tried to use it, *they* would be the target anyway, and I could sue them! http://www.wetcanvas.com/ubb/smile.gif

Of course, people can sue anyone over anything, regardless of any releases etc, but winning is another matter.

I'll talk to a lawyer if my situation gets to the point where it's warrented, but I think as a "nobody" I don't have much to be fretting about.


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Cheers,
Noble
http://artofnoble.com

kemshmi
02-17-2001, 02:11 PM
Hi Noble,
i think the bottom line is, you need a model release form signed for your protection/the models permission..
I would be interested in model release forms for the "casual person on the street" kind of thing..
there have been other threads here about model release forms, and i have searched the internet and found lots of them..
but, they are soooooo inclusive..practically asking the person to sign their life away kind of thing..
i reciently wanted one and what i found i thought asked for much too much from the individual
anyone have a good one or two paragraph thing for this, not for a studio model...

http://www.wetcanvas.com/ubb/smile.gif
thanks,
Kemshmi

domsanto
02-18-2001, 01:35 AM
As we all know, it is much easier to paint a non-likeness then to paint a likeness. So, I say take the easy way out and just paint a non-likeness.

Letitia
02-20-2001, 02:25 AM
Ok, how about this one. I like painting celebrities, like Sinatra, John Wayne, baseball and hockey players --Not To Sell!!! but to keep as my own collection. Now, my question is, if I want to just have a show just to show my work, none of them would be for sale. Am I still violating copyright laws?

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tish, Chelsea's mom and inspiration

pixelscapes
02-20-2001, 05:31 PM
Originally posted by Noble:
Go to any major mall and you will probably find a portrait "guy" (pastels & charcoal) there who *sells* prints of celebs he/she has done as samples. They aren't being thrown in jail, but they are probably *not* legally authorized to do that either.

There is an exception. I believe that if the "portrait guy" is doing caricatures it's totally legal -- it falls under fair use as commentary. This is how cartoonists get away with including famous people in their cartoons occasionally.

However, other than that type of exception, if the person is doing actual portraits that don't have any additional commentary value, there've been quite a few cases of artists getting in trouble because they aren't legally authorized to do so (as you mention).

-=- Jen "Ligualieze" de la Cruz

Noble
02-21-2001, 01:48 AM
Originally posted by Letitia:
Ok, how about this one. I like painting celebrities, like Sinatra, John Wayne, baseball and hockey players --Not To Sell!!! but to keep as my own collection. Now, my question is, if I want to just have a show just to show my work, none of them would be for sale. Am I still violating copyright laws?

Go to any major mall and you will probably find a portrait "guy" (pastels & charcoal) there who *sells* prints of celebs he/she has done as samples. They aren't being thrown in jail, but they are probably *not* legally authorized to do that either.

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Cheers,
Noble
http://artofnoble.com