A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A. She attempts to provide entertainment and basic general information about U.S. law. Enjoy. To learn more about her: Getting To Know Cheryl Adams To see her artwork Fine Art America.
Question: I’ve taken some photographs of people in restaurants. Can I paint these folks (full face, facing camera) or do I need a model release? ~Karyn
Answer: The best practice, of course, is to ask the person (we’ll call that person the Diner) you want to paint for permission.
If all you are doing is painting a portrait, in many situations and jurisdictions permission would not be required, but it depends on whether the diner has privacy/publicity rights, and it depends on how you plan to use the painting.
COPYRIGHT & TRADEMARK DON’T USUALLY APPLY:
We can probably dispense with two of the usual suspects of intellectual property (IP) law: copyright, and trademark, because people don’t usually copyright or trademark their faces. It can happen, but it’s very unusual, so we will limit this discussion to the normal situation where we’re dealing with ordinary folks frequenting ordinary restaurants, not specialized situations such as a clown’s copyrighted or trademarked make-up face, or Naked Cowboy’s trademarked body.
Before we talk about the law, let’s look at how things work as a practical matter. It could be a bit awkward to walk up to a stranger in a restaurant, shove a piece of paper in front of him or her, and ask for a signature on a model release. Normally, a model release is a contract in which the model waives rights in exchange for a model fee. Diner probably isn’t getting paid a model fee, so you’re asking Diner for a voluntary waiver of rights. I’m having trouble imagining that very many people would actually agree to sign, but you never know until you try. Maybe they’ll sign. Or maybe you’ll get an icy cold stare (or a punch in the face, if it’s a rough crowd) for being rude and intrusive.
I mentioned in a previous article that there are a number of reasons why people may object to being photographed. The same principles apply to being painted. Not everyone likes to be painted, not everyone will be happy with the resulting painting and/or like the idea of you displaying a creative interpretation of their face on an art gallery wall or elsewhere, some people have religious and/or cultural restrictions on capturing human images in paint or photography, and some people may have predatory or violent enemies, and do not wish to have their faces potentially posted where they can be viewed by anyone. I consider it a best practice to respect people’s wishes when they don’t want to be painted. Obviously, I don’t know whether they want to be painted if I don’t ask first.
MINORS AND CONSENT: If you are painting a child (a minor), then the minor cannot give you a legally recognized consent. If you are asking permission, or getting a model waiver, or any other waiver of rights from a minor, you need to ask the child’s legal guardian. Probably it’s a good idea to ask the child, as well as the guardian (as a practical matter, not a legal matter), because it’s probably better not to paint kids who don’t want to be painted.
CHANGE IS GOOD:
Another best practice (especially if you found it impractical to ask permission) is to change the face so it is not recognizable as that particular individual. If your artwork is not recognizable as an image of the Diner in the photo, then Diner will have a very tough time proving that you somehow misused Diner’s image. There are some myths floating around in the art world about it being ok to paint a certain percentage of a face. It simply is not true that there is some mathematically quantifiable portion of a face that it is or is not ok to reproduce. It’s whether it’s recognizable as Diner that matters – and after that, it’s how you use the image.
STATE LAW: PRIVACY RIGHTS, PUBLICITY RIGHTS and MISAPPROPRIATION OF A PERSON’S IMAGE:
The remaining areas of law, privacy and publicity rights, are creatures of state, not federal law. Different state legislatures pass different laws, so if you know the publicty/privacy rights law in your state, you may find the law to be somewhat different in another state. Sometimes the outcome of a case depends on the exact wording of the law that was applied.
That said, generally speaking, privacy/publicity rights law includes application of balancing tests. The tests balance various rights and public policy interests. The judge looks at a list of different factors that the specific law says have to be considered. The judge considers them, balances them, and decides which interests weigh most heavily. Each law has its own balancing test – a lot of the balancing tests look pretty similar, but when applied they can be just enough different enough from each other to change the outcome of the case. (Note that trademark and copyright law both have balancing tests for fair use – those two tests are similar, but not identical, and they sometimes bear a resemblance to publicity/privacy rights tests.) It is common for people to get the different balancing tests confused.
Where does that leave us?
Well… there are certain causes of action associated with privacy and publicity rights that recur through state law, in various forms. That creates a certain level of predictability, but if you’re going to play in the “not asking permission” zone it still pays to know the applicable law, so that you know what rights the Diners you want to photograph may have.
If you ask permission, chances are you don’t need to know much about privacy/publicity law. With permission, the publicity, privacy, and other rights, if any, are waived.
RIGHTS OF PRIVACY GENERALLY: As a general proposition (with exceptions), most types of rights of privacy are not violated unless the person is in a place or situation where he or she has a reasonable expectation of privacy. A restaurant is a relatively public place, so chances are if Diner is in a restaurant, Diner won’t have much expectation of privacy. If Diner is in a private dining room in the restaurant, or perhaps using the restroom, out of the view of the general public, I suppose then Diner might have some expectations of privacy.
RIGHT OF PRIVACY: MISAPPROPRIATION OF A PERSON’S IMAGE: This is an exception to the general proposition that there has to be an expectation of privacy RE: the place.
Using a person’s likeness for commercial purposes without consent is misappropriation. Usually the point of misappropriation laws is to allow private citizens to not be embarrassed by, for example, having their faces used for advertising a flour company’s products.
If Diner is a private person, and you embarrass her by posting her face all over the place, especially if you’re doing it in a way that brings you profit or benefit of some kind, you might be misappropriating her image. It depends on how the state law is written and applied.
RIGHT OF PUBLICITY: Rights of publicity, also called “personality rights” are often confused with rights of privacy, because they are so similar.
“Some commentators and states still continue to refer to the unauthorized appropriation of an individual’s identity as an invasion of the right of privacy. However, these two bodies of law are usually distinguished as follows. While the right of publicity provides the individual with a property right in his/her identity, the right of privacy protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing, intimate or portray someone in a false light that is highly offensive. The right of publicity must also be distinguished from defamation in that defamation involves the publication of untruthful information while right of publicity claims usually result from the publication of truthful information.”
Often rights of publicity involve celebrities. Celebrities are already out in the public eye. They’re already being used in advertising, so it’s not so much about the embarrassment of being public when you want to be private. Instead, rights of publicity are about who gets to control (and profit from) the publicity. The publicity is viewed as property, so this generally viewed as more like a property right than a privacy right.
And, again, it matters how the state law is written and applied, and not all states recognize a right of publicity.
OTHER PUBLIC INTERESTS:
Other public interests, such as First Amendment rights of free expression, can sometimes override the above privacy or publicity rights. Often, the more commercial the use is, the less likely it is to be acceptable to the courts. The more like a First Amendment use (artistic expression, news, educational discourse, etc.) it is, the more likely it is to be acceptable to the courts.
Usually what happens is the court applies a balancing test prescribed by the law, which requires the court to weigh a number of different public-interested-related factors. The court decides which factors, given the specific circumstances, weigh most heavily, and we end up with a decision based on the specific facts of the case and the specific language of the law that was applied.
Often, but not always, strictly or primarily artistic-expression uses end up being allowed, and uses that are mostly commercial end up not being allowed.
LANHAM ACT: The Lanham Act is federal (not state) law. It provides a certain amount of trademark-like protection for various misuses of a person’s identity, especially where a celebrity’s identity is used to imply endorsement of a product that that celebrity has not endorsed. As long as you’re not using your paintings as a form of false advertising, you’re not confusing the public by making it look as if Diner is associated with, or endorsing, a product (or whatever) that she has not endorsed or is not associated with, you probably won’t run into Lanham Act issues.
SOURCES AND FURTHER READING:
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