Legalities 7: Issues Regarding the Use of Someone’s Likeness

Q. A few months ago my husband and I attended an art opening at a local gallery. While visiting the same gallery recently I was surprised to see a large painting depicting a man who looked exactly like my husband. When I questioned the gallery owner he explained that an artist had been taking snapshots of people at the gallery opening we attended, had taken one of my husband and made a painting from the snapshot. The painting is not particularly flattering and I am wondering if the painter has the legal right to do this. Doesn’t my husband own his own image?

A. The short answer is no. Individuals do not have an absolute ownership right in their names or likenesses. But the law does give individuals certain rights of “privacy” and “publicity” which provide limited rights to control how your name, likeness, or other identifying information is used under certain circumstances. These laws vary from state to state, so they are difficult to summarize. For these purposes, I will discuss the relevant California laws as they apply to the use of names and likenesses by artists.

Your right of privacy or publicity is violated when your name, voice, signature, photograph or likeness (for simplicity, I will refer to all of these as “likeness” below) appears in a work of art and (a) you can be clearly recognized as the subject shown in the work, (2) you have not consented to the use, and (3) the circumstances fit one of the following criteria:

(1) Invasion of privacy by intrusion into private affairs

This right is violated when someone discloses private or sensitive matters about a private person. It covers matters that occur in private places, and also in semi-private settings where the individual had a reasonable expectation that she was seen only by a limited group of people. For example, this right is violated when a news reporter secretly videotapes a conversation with an employee at her place of work, even though her fellow employees witnessed the conversation.

In your example, the gallery might be considered such a semi-private setting. However, your husband’s mere physical appearance at the opening would not qualify as a “private” or “sensitive” matter. So the act of taking his photograph, and/or disclosing what he looks like in the subsequent painting, would not violate the intrusion right of privacy. If he had been documented doing something of a sensitive nature, such as embracing another woman, that would be a different story.

(2) Invasion of privacy by trespass or constructive trespass

This right is violated when someone trespasses on your private property intending to capture a visual image, sound recording, or other physical impression of you engaging in a “personal and familial activity,” or when he uses a device, such as a telephoto lens or audio-enhancing device, that enable him to obtain the same results as would otherwise require trespass. Insurance and criminal investigators are exempt.

This doesn’t apply to your example as no such trespass was necessary to take your husband’s photo in the gallery, and moreover, he wasn’t engaged in a personal or familial activity. Conceivably, artists might violate this right if they used these methods to get images of a person that was later used in a painting, but the scenario seems unlikely.

(3) Invasion of privacy by public disclosure of embarrassing private facts

This right is violated only when the disclosure is not of legitimate concern to the public. The courts are quite liberal in interpreting “legitimate concern to the public,” so it is difficult to prevail on a claim that this right has been violated. Artists might violate this right if they depict a person nude, or in the course of doing something offensive. However, if the nudity or offensive conduct occurred in public, that fact itself might be construed as matter of legitimate concern to the public.
In your example, there were no embarrassing private facts disclosed. Your husband’s appearance cannot be a “private” fact because by definition, it is how he appears in public.

(4) Invasion of privacy by false light disclosure

This right is violated when your likeness is used to suggest something false and derogatory or defamatory about you. For example, suppose an individual’s photograph is used to illustrate an article about drug dealing. If that individual is not a drug dealer, the article has created a false insinuation about his character.

In your example, I am assuming there is no such false insinuation. While the portrait is not flattering, that your husband doesn’t like the depiction is not sufficient to support a complaint that his reputation or character has been damaged. If, however, the artist had portrayed your husband doing something offensive and false, such as robbing a bank or fondling a child, that would be a different story.

(5) Invasion of privacy by commercial appropriation / rights of publicity

These rights are violated when a person’s likeness is used on or in connection with products or merchandise (“goods”), or to sell or advertise goods or services.
With respect to artwork, the courts have generally considered works of fine art to be expressions of the First Amendment rights of free speech, and thus immune from liability for violation of privacy or publicity rights. Only commercial reproductions of the artwork qualify as goods under this standard. Thus, the original painting of your husband would not be a violation of his rights of privacy or publicity. However, if the artist subsequently reproduces the painting on t-shirts, postcards, etc., those items would be considered “commercial” goods, and that would violate your husband’s rights of privacy and publicity under this standard.

The grey area would be reproduction of the painting as a limited edition of fine art prints. Most courts consider such prints to be free speech just like the original artwork and thus, still immune from rights of privacy or publicity. For example, in New York an edition of 5,000 prints of a painting depicting Tiger Woods was held immune as an artistic expression of free speech. However, in California, the standard is more subjective. In a recent case concerning a portrait of the Three Stooges, the California Supreme Court held that artwork is immune only if it is “transformative.”

Unfortunately, the meaning of “transformative” is elusive. The court said that an artwork is transformative if it is perceived as “primarily the artist’s own expression rather than the subject’s likeness.” This could mean that the style of the rendering is what matters: if a painting is a caricature, it is probably transformative. If it’s a conventional realistic portrait, it’s not transformative. However, it could also mean that the artwork’s appeal to the consumer is what matters: if they want to buy it because of the wonderful artistic technique, it is transformative. If they want to buy it because they want a picture of that person, it is not transformative. Most consumers don’t know him, so they would want to buy the painting of your husband for its artistic quality, not because it depicts him. If it has artistic qualities beyond a conventional realistic portrait, that would further support the argument that it is transformative; for example, if stylized distortion or harsh colors contribute to the unflattering depiction. See Legalities 3 for more on the rights of publicity.

Q. I recently painted a portrait from a photo of Elizabeth Taylor. I have gotten a lot of good feedback on it and am considering selling prints and possibly note cards as well. Since I am a fan of Ms. Taylor, I do not want to infringe upon her rights. Is it a good idea to seek permission from Ms. Taylor? Aren’t there some images that are considered “public domain”?

A. Yes, you would need Ms. Taylor’s permission to sell prints and note cards of your painting. As discussed above, celebrities have rights of publicity in their images, and at least in California, that includes the right to distribute fine art prints and note cards of your portrait, unless it meets the test for “transformative” art.

Celebrity photographs are not in the public domain. However, celebrities enjoy little, if any, rights of privacy, and their rights of publicity are limited to commercial uses. Unauthorized photos and illustrations of celebrities are common in the media, because most media depictions of celebrities are considered expressions of free speech about matters of concern to the general public. Thus the photographers and publishers of such images are immune from liability for violating the celebrities’ rights of privacy and publicity under the First Amendment. The photographers and/or publishers, however, still own copyright in their photos of the celebrities.

Therefore, you also need permission from the photographer (or her assignee) who took the photo you used as a reference for your painting. Under copyright law, the photographer is the original “author” and copyright owner of the photograph. A painting based on the photograph is a copy of that work. Thus, the painting constitutes infringement unless you have the copyright owner’s consent. Moreover, this is true whether or not you make reproductions of the painting, because the painting itself is already an unauthorized copy of the photograph. See Legalities 1 for more on copyright.

For these reasons, artists must be doubly careful when using photographs of people as references for their work. You may need multiple permissions, not only from the photographer, under copyright, but also from each person depicted, under the rights of privacy and publicity. Generally, artists’ models have consented to use of their image in the artwork by virtue of being paid for their services as models. However, such implied consent might not extend to commercial goods. It’s always a good policy to get written releases from your models, or anyone whose likeness appears in your work. Next month, more on model releases.

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Legalities is a service mark of Linda Joy Kattwinkel. (c) 2004 Linda Joy Kattwinkel. All Rights Reserved. Ms. Kattwinkel is a former graphic artist who currently enjoys personal oil painting. She practices intellectual property law, arts law, arbitration and mediation as a member of Owen, Wickersham and Erickson in San Francisco. The information in this column is provided to help you become familiar with legal issues that may affect graphic artists. Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel. A good resource for finding counsel is the lawyer referral service of California Lawyers for the Arts (SF office: 415-775-7200). Linda Joy Kattwinkel can be reached at 415-882-3200 or ljk@owe.com.

See the index of previous columns for more answers to your questions.