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Wherefore Thou Art #20
You Shall be Released

Photographers and other visual artists (like painters and sculptors) often use real people as their subjects. Sometimes the subject is someone the artist knows well, or has hired to be a model; sometimes the subject is a stranger on the street, or a crowd of people somewhere; sometimes the subject is a celebrity; sometimes the subject has died.

These creators need to be careful that the images they create do not end up infringing the rights of their subjects. A good awareness of the rights of privacy and publicity is essential for any creator who trades in images of real humans.

What makes these issues difficult is that they are matters of state law, so that there can be differing twists and turns in the law depending on what state’s laws apply. But the rules are similar enough from one jurisdiction to another that we can make some generalizations about what’s kosher and what’s not. And the fact of the matter is that with the media, and especially the internet, the dissemination of an image can quickly spread to many states, exposing the creator to potential liability wherever the image lands.

The main concern is the subject’s right of privacy, and this right has a couple of different aspects. First, one’s image cannot be used for commercial purposes without permission. Many states, including Massachusetts and New York, have statutes that say this (the Mass. statute refers to “advertising purposes or for the purposes of trade”); in Connecticut it’s a matter of common law, but the thrust of the law is largely the same.

OK, so what are “commercial purposes?” Courts generally have interpreted the term “commercial purpose” narrowly – it’s not just any use that somehow involves money. Certainly it includes usage of someone’s image in a print or television advertisement. An image on the cover of a magazine would likely be commercial use because it helps sell the magazine; the same image could appear accompanying an article inside the magazine and be found to be perfectly legal, even though the creator of the image got paid for the use and the magazine makes money. The Massachusetts statute also has a provision that says that a professional photographer may display someone’s likeness in his studio without permission unless the photographer receives written notice objecting to such use.

Next, an image that intrudes on someone’s “solitude and seclusion” is out of bounds. Using a photo taken of someone, or a group of people, on the street (where there is no expectation of privacy) is generally OK; using a photo taken by climbing a tree and shooting over someone’s backyard fence or in someone’s window is not OK.

Related to this involves the “publication of private facts,” which involves the disclosure of private things about someone that would be offensive to a reasonable person and are not matters of general public concern.

Of course, if your image involves a matter of legitimate public concern, if it’s news, than all bets are off. The subject’s privacy rights are often trumped by notions of fair use, freedom of speech and public policies that favor the public’s right to know.

If you are now thoroughly confused, and feel that you have no better idea than you did ten minutes ago of what kind of use of someone’s image is OK, do not despair. It’s complicated and squishy, it’s subject to wide and varying interpretations, and there’s as much gray area as there is definition.

So what’s an artist to do?

The answer is simple: get a release signed by the subject whenever you can. Then you don’t have to worry, the subject is aware of what’s going on, and maybe most importantly, your images become infinitely more marketable. Most publishers will not touch an image of an individual unless there is a corresponding release from the individual allowing the publication of the image. And the publishers will stick to this requirement even when it’s clear that the subject’s privacy hasn’t been invaded. Why? It’s because the publishers realize that it’s not enough just to be right on the law. There’s a huge difference between being right on the law and being insulated from a lawsuit. Without a release, almost any use of an image runs the risk of a lawsuit, and making even a frivolous lawsuit go away can cost many thousands of dollars. With a release, there is certainty that the use of the image will be risk free.

I don’t have room here to talk about what must be in a release, but it’s not rocket science. There are numerous resources on the web that discuss the contours of a good release. Try Googling “photographers,” “model,” and “release.” Or talk to a lawyer who’s versed on the subject.

One word of caution: if your subject is under the age of 18, make sure that you get both the subject’s and a legal guardian’s signature on the release. Minors lack the legal capacity to give you permission to use their image, and they can revoke their permission at any time. With a guardian’s imprimatur, you can usually have (in many jurisdictions, including New York and Massachusetts) a binding contract.

What about images of celebrities? Celebrities have, in addition to the right of privacy, a right of publicity in their name and image. This right has evolved to the status of a property right related to a celebrity’s effort in creating his or her celebrity-dom, Paris Hilton notwithstanding.

Generally, this right has been understood to allow the celebrity the right to control the use of his or her image in a “product,” but this protection doesn’t generally extend to a use that involves “serious” artistic expression or news. A couple of recent examples might help here. A court recently ruled that signed, numbered prints of a painting of Tiger Woods by an established artist did not violate Tiger’s publicity rights. It was “art.” On the other hand, a different court ruled that mass-produced t-shirts that contained a simple drawing of the Three Stooges violated the publicity rights of Larry, Moe, and yes, even Curly. Again, there are no bright lines here, but suffice it to say that the more your work feels like “art,” the less likely you’ll be found to be infringing on a celebrity’s rights.

And dead celebrities? There is a growing body of law that protects celebrity’s images even after that celebrity has stepped on the ol’ rainbow. However, the law varies wildly from state to state. In California, there’s a law that provides for publicity rights that exist until 70 years after the celebrity’s death. Neither New York nor Massachusetts have such a law, and it’s unclear what is protected at common law. Given the mobility of media, the internet, etc., it would seem that the most restrictive state tends to create the law for the entire country. I’d always recommend seeking the permission of a dead celebrity’s estate before launching into a commercial venture using that celebrity’s image.

It is astounding to me (as it may be to you) that there are no uniform laws of privacy and publicity in a country where celebrity, images, and privacy have become so prominent in our common discourse. But these laws remain a bramble of uncertainty and contradictions among 50 different state jurisdictions. Academics and lawyers in the field have been calling for some federal legislation that would get everybody on the same page, but of course our elected leaders turn a deaf ear, opting instead to focus on the more pressing and vital issues of our time, like gay marriages, flag burning, and two words in the Pledge of Allegiance. So we’ll just have to wait, and stay confused and uncertain.

© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.