Legalities 17: Privacy and Publicity Rights

More on rights of privacy and publicity – can you publish old photographs of clowns? What about photos of race cars in a product catalog?

This month’s questions return us to the rights privacy and publicity. These rights should be considered whenever your work depicts real people or anything that is immediately associated with celebrities. Please see Legalities 7 and Legalities 8 for a thorough discussion of the legal theories involved. The answers below are best read in the context of those earlier columns.

Q. I received art materials for helping to sort out an artist estate. One thing was a pencil box. After a year I found 100 original photos of clowns from 1940’s that she used as references for her paintings. I am planning to make a book of them. I checked her will and it stated she had no heirs. So I believe I have the right to make the book. The question I have is do I need the permission of the people in the photos or there heirs to use them. Almost all images were posed for the artist. Thank you for any help you can give me. I would really like to do this book in honor of the artist’s love for the circus.

A. You are right: there are two considerations: copyright and rights of publicity/privacy.

Copyright: I assume these photos were taken by the artist herself, so she was the original copyright owner. The first question I would have is whether she still owned the copyrights when she died. That depends upon a complex analysis under the old copyright law that was in effect when she took the photographs. It starts with whether the photographs were ever published. If so, did they have a copyright notice? (if they were published without a copyright notice, they probably became public domain at that point.) And depending upon when the copyrights were registered, whether they are still under copyright depends upon whether they were renewed (copyrights may have expired if they were not manually or automatically renewed, which again depends upon when the first registration happened).

On  the other hand, if, as it seems like here, the copyrights were not registered and the photographs were not published, then the copyrights last for 70 years after the artist’s death. In that case, you are right, you need to determine who inherited the copyrights. The copyright in an artwork is separate from tangible ownership of the artwork itself, and they may be inherited separately (that is, one person or entity can own the photograph, but another can own the copyright, i.e., the rights to reproduce the photograph). Also, property, including intellectual property like copyrights, may be inherited even if there are no individual heirs (for example, bequests can be made to museums or other institutions).

In your case it seems likely that the executor of the artist’s estate intended for you to own all rights associated with the materials you were given. But if she didn’t know about the photographs, that assumption might not be valid with respect to them or the copyrights.  It would be prudent to contact the executor and get a written agreement that you have been given the photos and any copyrights in them before you proceed with your book.

Rights of privacy/publicity:   The next question is whether you need the individual clowns’ (or their heirs’) permission to reproduce their photographs in the book. In Legalities 8, there is a checklist for working through the evaluation:

(1) Is the person clearly recognizable in the photograph? For the clowns, the answer is probably yes. Even though they are in costume and makeup which may hide their normal daily appearance, the clown persona is a way they would be publicly recognized. 

(2) Do you have the person’s permission? In this case we can assume the clowns gave the artist permission to take the photos for the purpose of creating her paintings. We don’t know whether that permission extends to publishing the photographs themselves.

(3) Does the work show something negative or embarrassing about the person? Here I will assume the answer is no, unless there was something in the photos that could be seen as negative and the painter eliminated it from her portrait.

(4) Is your work a commercial exploitation of the person’s likeness? This consideration is both a type of privacy right and the essence of the right of publicity. In your case, the answer is probably not, since it will be an editorial book that is not using any particular clown’s image as an endorsement to sell products. See Legalities 8 for a more thorough discussion.

One final consideration here is whether the clowns are considered private persons or celebrities. Privacy and publicity rights are matters of state law, and unfortunately they vary from state to state.  Rights of privacy generally do not survive a person’s death – they can’t be inherited. Some states give celebrities a right of publicity that lasts beyond their death; but sometimes only if the publicity rights were exercised before their death. For example, if a particular clown had already allowed his image to be used in advertisements for the circus, then he might have established publicity rights, and his heirs could claim a right to control uses of his image after his death. See the second question in Legalities 7. However, the heirs’ rights would still be limited by the scope of publicity rights, which as noted above doesn’t give them a right to stop non-commercial uses of the clown’s likeness.

So most likely, you won’t need the permission of the clowns’ heirs to do your book. However, I can’t say for sure because of all the unanswered questions involved, which unfortunately may vary from clown to clown, depending upon whether they are still alive, what state law governs, and what the individual photos show.

Q. I produce several catalogs for a piston manufacturing company. Do I need to be concerned with the use of vehicle images taken at races or vehicle shows? What about use of shots of custom vehicles taken randomly in public places?

A. I see two issues here. First, the images of vehicles may involve trademark rights of the respective car companies. Second, there may be publicity rights with respect to individual owners/drivers of the custom vehicles.

Car companies / trademark rights: The car companies’ trademark rights may be invoked if images of their cars are used in a catalog to sell another entity’s products. Under trademark laws, a company’s name, sub-brands, logos and any other symbols associated with a company, including the appearance of the companies’ products (in this case, the cars), are owned by the company as its exclusive trademarks and “trade dress.” The car company has a right to stop any use of its trademarks or trade dress that falsely suggests that another company’s goods or services come from the car company, or that the car company endorses the other entity’s goods or services.  When the company’s trademarks or trade dress are used to trade on the car company’s reputation in this way, the legal claim is for trademark infringement.

So in your case, the question is whether the photos are being used in your catalog in a way that could create an impression in the minds of those who receive the catalog that the car makers are endorsing your products. Unfortunately, this is a case-by-case factual analysis. Sometimes photos can be used in a catalog in a way that is perceived as purely editorial – that is, showing images of general interest to your customers in a newsworthy way, without directly linking the image to selling a particular product.  In that case you wouldn’t need the car company’s permission. But the line between editorial use and commercial use is not always clear. Sometimes it may depend upon whether the catalog text or photo captions suggest that your products are made or endorsed by the car company.

Custom car owners / rights of publicity: Rights of publicity may be involved if the relevant members of the public (in this case, race car fans or vehicle enthusiasts) recognize the custom car as belonging to a particular driver. Under the rights of publicity, a celebrity can control not just how his name or image is used commercially, but anything else that is immediately identified with him. California is a leader in this area. For example, California courts have found violations for unauthorized use in radio advertising of “voice-alikes” of Bette Midler and Tom Waits, and an unauthorized robotic imitation in a tv commercial of Vanna White’s role in Wheel of Fortune. In fact, one of the landmark cases in this area was a California case in 1974, which held that famous race car driver Lothar Motschenbacher’s rights of publicity had been violated when an image of his custom race car was used in a tv commercial for Winston cigarettes without his permission. In the commercial, several features of the car had been altered (e.g., the car number was changed, and a spoiler was added). Nevertheless, the car’s distinctive stripes were immediately recognized by Motschenbacher’s fans.

The standard for a publicity rights violation is slightly different than for trademark infringement. Generally, the publicity rights of a celebrity are broader. For trademark infringement, it is permissible to use a company’s trademark or trade dress to say something factual about your product, e.g., that it is a replacement part for a certain vehicle. To make an analogous statement about a celebrity, however, may be a violation of publicity rights. For example, it may be a matter of fact that a certain race driver routinely uses your pistons in his cars. But if you make that statement in your catalog without his consent, you would be violating his rights of publicity.

Using an image of his car for the same purpose would also be a violation. So the question again comes back to how the image is being used, and whether you are trading on the race car driver’s reputation to sell your pistons. Generally, in a commercial context such as a catalog, it’s difficult to show that you are not using such an image to sell your products. There might be some wiggle room if the car is shown in the context of many other cars in the same shot. However, the analysis again would be on a case-by-case basis. As a general rule, it would be wise to get permission from the car owners to use photos of custom cars.

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Legalities is a service mark of Linda Joy Kattwinkel. © 2005 Linda Joy Kattwinkel. All Rights Reserved. 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.

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