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. 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.
