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Daniel Grant

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Artists: Can You Be Sued for Including a Real Person in Your Painting?

Posted: 12/25/11 05:36 PM ET

What could seem more natural and time-honored? An artist takes an easel and paint set out to a field (a park, a beach, the woods, a city street -- whatever) and paints the view. What could seem more representative of a litigious society? The same artist rushes around to every person found in that view, waving a "model release" form and asking for signatures as protection against any lawsuit charging invasion of privacy and publicity.

Perhaps the description is a bit overstated: Artists aren't being hauled into court every time they include a recognizable face in their work, but the growing sense that one's likeness is a "property" that can be commercially exploited has led many artists to feel less secure in pursuing realistic figurative images.
Competing interests are at stake, the artist's right to free, creative expression and a subject's right to control how a likeness is used. In general, the artist's right is constitutionally protected by the First Amendment to the U.S. Constitution, but both artist and subject have economic interests in a likeness -- the artist to sell the image in the form of a painting, sculpture or print, the subject potentially to sell the visage to fans as posters or as a product endorsement -- and the battle is played out on the state level over the right of publicity.

Unlike a federal statute, which supercedes state laws, the right of publicity (and of privacy) is wholly determined by each state, and there is significant variation from one to the next. Some state publicity statutes make specific exceptions for artwork, while others do not. Indiana exempts artwork in its statute, but New York case law has specifically extended the law to protect the first amendment rights of artists, which includes multiples (print or sculpture editions) while Indiana's law only stipulates one-of-a-kind pieces. On the other hand, California allows the image to appear on a t-shirt or some more commercial medium, although in limited circumstances. California, Florida, Indiana, Kentucky, Nebraska, Nevada, Oklahoma, Tennessee, Texas and Virginia allow publicity rights to be transferred.

A number of states hold that the right of publicity ends with the subject's death, while almost all the states with publicity rights statutes permit the right to be inherited. Florida, for example, extended the right of publicity to 40 years following the individual's death, while Indiana and Oklahoma allow 100 years, and Tennessee crafted its law in 1984 to enable heirs, such as Elvis Presley's, to control the use of a name and a likeness indefinitely. In addition, Washington's and Indiana's statutes provide retroactive publicity rights protection of 50 and 100 years, respectively. State right of publicity laws include minimum or statutory penalties for unauthorized use of a name or likeness -- California's is $750, while Indiana's is $1,000, Washington's is $1,500 and Texas' is $2,500 -- as well as reasonable lawyer's fees and possible punitive damages.

Uncertainty can develop as artists sell works outside the borders of their own states, for instance, at an art fair or gallery. "I advise my clients, wherever they live, to comply with the most restrictive state laws" of publicity, said James Silverberg, an intellectual property lawyer in Washington, D.C. The Internet also may create jurisdictional problems if collectors in one state may purchase works from the website of an artist living in another state, depending upon whether the site is active (allows one to buy pieces directly) or passive (requiring buyers to contact the artist).

A number of high profile contests have been waged in the courts -- model Cheryl Tiegs versus Mihail Simeonov in New York, Tiger Woods versus Rick Rush in Ohio and Comedy III Productions, Inc. (owner of the rights to the Three Stooges) versus Gary Saderup in California, all of which were won by the artists -- but the right of publicity exists for everyone, not just the well-known (although celebrities have a greater economic stake in their names and likenesses). As a result, artists setting up their easels in a field or park with the plan of including in their compositions one or more persons they see may choose to change certain elements in their depictions that make the setting or subject less recognizable, such as different clothes, different pose, different face or hairstyle. However, those changes may act to destroy the inspiration that led them to depict the scene in the first place. The alternative is to bring a model release form that a subject would sign before beginning the artwork.

Model release forms are used regularly by photographers in advertising and illustration, and they offer protection to both the model and photographer. The model knows precisely the use that will be made of the image (a book cover, for instance, but not a pornographic website) and the photographer is protected from any claim of having violated the subject's right of publicity. A standard form indicates that for the payment of some (fill in the blank) amount of money, the model irrevocably assigns to the photographer the use of the image for advertising, trade or any other lawful purpose, waiving any right to inspect or approve the finished version. If the model is a minor, a parent or guardian would sign the release form. The agreement is irrevocable, protecting the photographer in the event that the model changes his or her mind, and waiving the right to inspection or approval insures that the photographer has full artistic control over the final product. The more specific the form, the less likely that the parties will find themselves in court arguing over what they had agreed to.

Fine artists and their models have the same needs and requirements. The release form that artists would offer to a prospective model provides them with a maximum level of flexibility, such as the ability to use the image in all forms, media and manners of use. That might include exhibitable sketches and a final painting, as well as a print version of the image, the use of the image on the artist's advertising brochure or website and on t-shirts. The artist might also be able to license the image to a company that manufacturers calendars or note cards, among other items. A well-regarded sample model release form may be found in Tad Crawford's Business and Legal Forms for Fine Artists (Allworth Press). Less clear is how willing people in a field or park might be to sign a legal document thrust at them by some artist they don't know, giving the artist a lot of leeway and them none. (James Silverberg, who strongly recommended artists carry with them carefully worded model release forms, was himself silent on the question of whether or not he would ever sign one if an artist approached him.) There may need to be a fair amount of discussion between artist and subject about what the artist has in mind and even some last-minute rewriting of the release form.

Not every artist worries about being sued or getting every agreement in writing. Baltimore, Maryland portrait artist Simmie Knox, whose website contains a gallery of past subjects, doesn't get written permission to upload the portraits, "but I get a verbal OK. I know to ask," and New York City artist Will Barnet claimed that the subjects of his paintings are "often happy to have him reproduce their images elsewhere. They like what I've done." However, North Salem, New York painter Daniel Greene was once threatened with a lawsuit by a woman who had commissioned him to create a full-length portrait that he used on the cover of a brochure and in a magazine advertisement. Pleased with the actual painting, she did not want to see herself on public display. "I decided not to use that image anymore," he said, adding that "I now ask permission if I plan to reproduce the image on a brochure or ad."

Pop artist Andy Warhol made a career out of creating likenesses of famous people -- Marilyn Monroe, Jacqueline Onassis and Elvis Presley, to name just a few -- but was never sued for violating their privacy rights. In part, according to Washington, D.C. lawyer Joshua Kaufman, it was understood that "the celebrity image is the raw material, and a collector is buying the work because of the artist, the artistic elements that Warhol brought to the subject." Additionally, he noted, "the right of publicity was not developed or enforced very much." The more recent court-defined test of whether the use of a likeness intrudes on publicity rights developed from the Three Stooges case, in which it was found that Gary Saderup's charcoal drawing of the three characters was not in competition with other Three Stooges memorabilia.

Warhol, however, may have been fortunate to have created these works in the 1960s, before most states had even enacted laws protecting the right of publicity. Right of publicity statutes were first adopted in the 1950s as an outgrowth of privacy laws, and currently 35 states have publicity laws (11 other states have case law on publicity but no statutes, while the remaining four states have no statutes or common law). Privacy has been defined as "the right to be let alone" and protects individuals against unreasonable intrusion, publication of private facts and being "held in a false light in the public eye" -- in effect, to protect the individual's feelings and reputation. Publicity laws, on the other hand, are property rights protecting an individual's ability to commercially make use of that person's name or likeness. Had Andy Warhol begun his career now, he might have come up against celebrities who are far more savvy about how their names and images are used.

"We've become a very litigious society," James Silverberg said. "People can always make a claim, and it can be very expensive to defend against it. Art has become a hazardous endeavor. If you think walking on a scaffold 30 feet off the ground is dangerous, be an artist."