What artists should know about privacy


It seemed creepy. Photographer Arne Swenson aimed his camera with its telephoto lens towards the windows of adjacent apartment buildings in New York City, taking pictures of people going about their normal business and exhibiting them in 2013 at New York City’s Julie Saul gallery. One family that found itself in those photographs, which included a mother and her one year-old son in a diaper and her three year-old daughter in a bathing suit, brought a lawsuit, claiming a violation of the family’s privacy under the state’s civil rights law. That law prohibits the use of someone’s name or image for the purpose of advertising or trade. However, in 2015, a New York appellate court found for the artist, who claimed that his images did not constitute advertising but were protected works of creative expression.

Artists – painters, photographers, printmakers and sculptors – regularly include identifiable figures in their work, and calling that work “art” won’t always suffice to keep them out of trouble. 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. When might an artist need to have a “model release” form on hand to avoid trouble?

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.

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 Web site of an artist living in another state.

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).

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 Web site), 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 Web site 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 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. 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.

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.

“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.”

By Daniel Grant

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