Legalities #7: ISSUES REGARDING
THE USE OF SOMEONE'S LIKENESS
Do you need permission to use a private person’s
image in your work? What about celebrities?
by Linda
Joy Kattwinkel
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.
