A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Question: If the subject of a photograph, painting or drawing is an animal (pet or foster dog/cat specifically) is it necessary or required to obtain a Model or Property Release from the owner of that animal? This question is mainly for USA situations.
Answer: Usually, you only need to get permission if the animal you want to photograph, paint, or draw is a celebrity, and even then depending on how the intellectual property rights are sliced and diced, there are plenty of situations where legally, you won’t need permission or releases. That said, to err on the safe side, I consider it a “best practice” to get permission (in writing if you can) anytime I am using other people’s animals as subjects for artwork, especially if I plan to try to sell the artwork or otherwise bring the artwork into public view.
In general, in the U.S. animals don’t have rights. Congress and other legislatures can pass laws that give animals rights, or otherwise protect animals. Usually where there is law protecting animals, it has to do with addressing cruelty to animals, or other situations that cause more harm to the animal or other parties than just pointing a camera at an animal, and clicking the shutter. While there is a little bit of law out there addressing using animals as subject matter in artwork, you cannot count on it being universally applicable. It can apply in one jurisdiction, not in another, and outcomes of cases can be highly fact-specific.
In general, the law treats animals as property. Humans can own animals. Humans can also own various rights associated with animals. If the animal becomes a celebrity, the publicity rights and other rights associated with that particular celebrity animal can be valuable property rights. The animal doesn’t own these rights, humans do.
The law allows animal owners to protect the value of their asset, the cash flow that comes from owning rights associated with an animal’s celebrity status, in various ways. This sounds very cold. We love our pets, it feels a bit harsh to think about the sweet loving animals we care about as assets. That’s how the advertisers and movie studios, etc., have to think about it, though, and that’s how anyone who has a right to receive some of the cash flow from an animal’s celebrity status has to think about it.
If we think about cows, and how professional farmers earn their living by taking care of cows, and selling the milk that flows from their cows, perhaps how we use the celebrity status of animals makes a bit more sense.
If an animal becomes a celebrity, the owner, or a movie studio, can take various approaches to protecting the value of their asset. The primary areas are:
(a) Trademark; and
(b) They can enforce publicity rights, if any. Trademark is mostly federal law, although there is a little bit of state law thrown in. Publicity rights are generally state law, publicity rights law can vary quite a lot from state to state. Publicity rights law was created to address humans’ rights to publicity. It ends up occasionally getting rather awkwardly applied to animal celebrity situations, for lack of a better legal framework to use, so it gets messy and, last but not least:
(c) In the U.S. Copyright protection does not apply to art made by animals, but it may apply to photos, paintings, or drawings of animals created by humans.
I will mention in passing that there is such a thing as privacy rights. For people, there can be state laws protecting people’s rights of privacy, which may affect artists’ ability to use other people’s images in their work. For people, privacy rights are usually not assignable – they can’t be owned by another person. Animals do not have privacy rights, and even if they did, an animal’s privacy rights would probably not be transferrable to their human owners. Law applicable to use of a human’s image often involves discussion of both privacy and publicity rights, if you are researching this, make sure you don’t get the two areas of law confused with each other.
What does all this mean to you? If the animal is owned by you, if it’s your pet, you can paint or draw or photograph it all you like. Except, if you happened to adopt an animal who had a prior celebrity career, with all kinds of movie studio contracts, and advertising contracts, etc., you would need to find out which movie studios, advertisers, & other entities still have their paws dipped into your animal’s publicity or other intellectual property rights. There may be entities other than you, the pet owner, who remain entitled to some of the cash that flows into human pockets from your pet’s celebrity status.
If it’s someone else’s animal, and the animal is not a celebrity, chances are there will not be big legal issues with you painting or drawing the animal, and of course you can make art from wild animals running free in nature because nobody owns them. That said, we all know how very emotionally involved animal lovers can be regarding their pets. I have often heard people refer to their dog, or cat as their “child.” They may be more emotionally attached to the animal than they are to some of the other people in their family! As a common sense and courtesy matter (nevermind the legal requirements) I would probably not paint other people’s pets (or children) without asking permission first.
Service animals, those specially trained animals which guide the blind and do other tasks to assist disabled people, are working animals. People are usually asked not to pet or distract service animals while they are working. It would be a bad idea to call or distract a service animal in order to get a better photo. I suppose it is possible that if you distract a service animal at a moment when it’s human needs the animal’s help, and someone gets hurt because of your involvement, there could be tort liability issues. Assault and battery laws (criminal or tort law, usually state law) often do not require the perpetrator to have actually touched the person who got hurt. The harm can be through an inanimate object (throwing a rock, for example) or causing an animal to inflict harm.
The problematic area usually is: photographing, painting or drawing celebrity animals. That can bring legal trouble, if you have not received permission, or received a waiver or release. Copyrights, trademarks, and publicity rights, all have the potential to survive the death of the celebrity animal. If the movie star dog who is the subject of your masterpiece painting dies, you, and others, can continue to have legal rights and responsibilities for as long as the copyrights, trademarks, or publicity rights last.
If I go to a dog park, or a pasture full of beautiful horses, and start snapping photos of the dogs or horses to use as sources for my paintings, do I know whether any of those animals I photographed are celebrities? No, not unless I ask, or unless I happen to follow dog shows or horse shows and recognize one of them. If you love to paint horses, and you photograph a horse with distinctive markings, best practices would be to either change the markings on the horse so the painting is not recognizable as that particular individual horse, or ask & receive permission to photograph / paint the horse.
This discussion would not be complete without addressing fair use. Fair use is the part of intellectual property (IP) law that allows us to sometimes ignore other people’s IP rights and do what we want (within limits) without asking permission. Fair use is based on what our “use” of the IP is. This is a huge, complicated, often not very well defined, area of law. This article is getting rather long, so I will write about fair use in a future article. If you’re interested in finding out about fair use right now, and you don’t want to wait for me to write about it, you can research it on the internet.
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