Copyrights

If you want a definite answer, you should speak to an attorney.

Acquiring legal advice from artists is like going to bakery for a pizza recipe. They may know about bread but that doesn't mean they know abut pizza.

You will get opinions but no definitive answer.

if they are in the public you have the right to shoot them... just see the news.. ok a dark joke.... but yeah, you can make and sell them, but not commercially. it doesn't stop the person from trying to demand you remove it though. but they can really only sue if they can prove damages. but i'm not a lawyer, etc.

---Mike Savad
http://www.MikeSavad.com

Your question is ambiguous, as are most copyright questions asked here. Do you want to know if there is a rule on FAA or a US law, or a state law or an international law? Or do you want to know whether or not they can sue you? At any rate you will get a different answer from just about everyone, including different lawyers. I can say that if you use it on a product you may get into trouble because they have a right of promotion. For art that is kind of a weak argument and the world is full of famous photographs taken as "street photography". Seek answers far and wide and ultimately you can decide for yourself what you are comfortable with. For the most part I avoid it if I think a person would mind.

This makes me think: what happen if another artist paint a portrait without your knowledge and selling prints here? What would you do if the prints selling like hot cake, would you ask for a share of the profit?

Probably best to ask someone well versed with legal subjects. A lot of people would be surprised to know that "in public" doesn't necessarily mean on public property. Many locations, while open to the public, are actually private property and require waivers (i.e. restaurants, museums, malls, shops, stadiums, venues, parking lots, neighborhood-owned parks, etc.). Even many public locations have restricted access or strict regulations and require waivers (schools, national parks and museums, etc.). So much grey area. And even if you go that extra mile to cover your backside, anyone can sue anyone else for just about any reason. So I'm gonna just agree with everyone here and say "ask someone who knows".

On the positive side of the equation, if it is a painting, there's no reason you can't alter things enough that the actual identity of the person is not represented. As a photographer of limited skills, I don't have that option, much but sometimes I blur and alter faces and even clothing in a street photograph for that exact reason. Even though it's legal, why risk problems?

I'll clarify another issue: what's not a problem for art, such as a straight print, might be a problem on a coffee mug or a tee shirt or phone case or shower curtain. Restrict the products to just prints, and you're probably safer.

Thanks everyone!

Alfred, I like how you posed that. What if someone took your picture at an art show and did a watercolor portrait and then tried to sell it.

1. Would it upset you?
2. Would you sue?
3. Would you just ask to take it down?
4. Would you be flattered?
5. Would you buy it?
6. All of the above?
7. None of the above

What if it was your child?

Everyone please consider what you might do and choose the appropriate number or numbers.

I would really like to know how you personally feel.

being upset is a natural reaction. still if your in public, you have no right to privacy. you can be sold as art, you just can't see yourself on a bill board.

to sue, you need to prove damages first. examples would be things like - shooting a person coming out of a strip club, or simply making them look bad under false light. just on the street, they would have no case. everyone wants to sue, they think its fast easy money, but its not. that won't stop them from trying though.

i may ask for them to take it down, it really depends how they use it. i don't know about flattered. even a child i believe is subject to this. it really depends on the circumstances though. and there are guidelines. like if you shoot a child on the street, it could be bad, but if you did it, and there was a clown near by, it would then be ok for some reason. the law is tricky. but in today's world, where everyone has a camera and they can make movies of your worst day and post it around the net - your in public, not much you can do about it.


---Mike Savad
http://www.MikeSavad.com

Anyone can sue, whether or not their case has legal standing. Even if you know they don't have a snowball's chance of winning, it still costs money for legal defense. In Shirley's case, I would feel flattered to have someone with that kind of talent paint my likeness. I wouldn't want to cause her grief with a lawsuit. On the other hand, if some knucklehead with a camera posted an unflattering shot of me and labeled it art because he considers it street photography, I would want to sue him just for being a you-know-what.

Shirley, it would depend on how good was the painting and how well know of the artist. Years ago, an armature artist asked friend of mine to pose for her, later she showed us the painting which did not look anything like him. She explained she changed his long hair into short, she changed this and that.to made him look better!

I only remove wrinkles!

When I photograph people....I like to leave their face out of it...I like the mystery of not knowing who it is.....but it also keeps anyone from demanding a share of my profits!

I just read a bit that artists/photographers are protected by the First Amendment (Freedom of Expression) and likely your work would be safe because you are selling it as "art". I wouldn't put it on merchandise though...That is where it can get tricky.

I am not a lawyer, but these guys are. Each state might have different rules:

http://www.pcblawfirm.com/articles/legal-issues-photographing-people/

"if they are in the public you have the right to shoot them... just see the news.. " News reporting generally falls under fair use, for copyrighted materials. If you're not within that fair use, the answer can be quite different. Also, news reporting is often viewed in the eyes of Constitutional law as "protected speech" which gives it special status where certain areas of the law are concerned. And whether the subject of the image is a "private person" or a "public figure" can matter. And sometimes news reporters don't quite completely observe the boundaries of the law -- and stuff gets published or aired -- that might technically be something that someone can sue them for. Most people "you showed my face on TV" isn't something they bother suing about, it's too expensive / time consuming to sue, and there's not that much to gain.

The default setting RE: a person's image is that people have various *privacy rights* (not copyrights, privacy rights) to their own images. There are exceptions. The laws vary from jurisdiction to jurisdiction.

The safest answer is: don't go putting people's images in your art without their permission, because the law is inconsistent, and there are traps for the unwary. That said, there was the NY artist who shot pics of his neighbors through their windows, put the photos on display in an art gallery, the neighbors sued, the artist won.

Our art gallery only allows paid artists models to pose for us after the models have signed a waiver saying we can use their image in our art.

If you want a clearer answer to your question, go to an attorney who knows your *local* intellectual property law, explain exactly what it is you plan to do, and see what s/he says about what steps you need to take to avoid lawsuits.

Disclaimer: As always, not legal advice.

I say go for it.

Fair use. Public space. If a court room artist can do it, I'm pretty sure a fine artist would have no problem. Is their face copyrighted? No. Its not like you are using them for commercial purposes.

Edward: It's not about copyright law.

The article Sharon posted explains it very clearly I thought... see the part about misappropriation of people's identities.

To answer Shirley's question, it would depend how I looked LOL. If the painting made me look great and I loved it, I would be flattered and help the artist promote it! I go to a lot of events here in LA just filled with professional photographers and paparazzi, not to mention everyone with a cell phone camera, so there is really very little privacy when you are out in public. Some venues even have posts that say "By entering the premises, you agree to be photographed." Also, the fact that someone is posing for you and you did not catch them in a candid embarrassing moment is proof that they consented to the photo and that could be helpful in court if they decided to sue you. If someone looks good in the image, they would probably be more flattered than upset and may even want you to use their name for their own publicity!

BTW, I think I saw an app once in the App Store that had model releases right in the app, so you could always try that for an on the spot legal release.

The fact is, anyone can sue anyone for anything as long as they can get a sleazeball lawyer to file a suit that they know has no merit (or file it themselves) and get an ever a bigger sleazeball judge agree to hear it.

The best defense in any lawsuit is not just being in the right. In fact, that may not mean a thing. The best defense is avoid getting sued to begin with. That is what my "adopted kid" the lawyer keeps telling me.

"Some venues even have posts that say "By entering the premises, you agree to be photographed."

Which raises the interesting question of why someone would pay to have the sign created & posted, if they didn't think there might, possibly, be a problem with consent.


*************

"The best defense is avoid getting sued to begin with." I agree with that 100% The trick is knowing the law -- and human nature -- well enough to know how to avoid getting sued to begin with.

Most of law is the guy who just had to push the envelope, did something legal but highly obnoxious to someone, and got a new law made in his honor.

Cheryl, I live in LA so most events are filled with actors and models because this city is just teeming with them, at all levels, the caterers are even actors and models and often members of unions, so they might sue, especially if there are videographers because they are members of the actors' unions SAG and AFTRA so the event promoters have to be extra careful here...

I'm so glad that I'm not even tempted to paint subjects that could get me in trouble. lol I have no interest in painting people, and if I did add one to a landscape painting they'd be so abstracted as to be unrecognizable anyway.

BTW you can't copyright a face.


https://blogs.harvard.edu/infolaw/2011/12/10/copyright-and-your-face/

Edward, I was on the Grand Jury 6 times. I sat there and drew their faces, everyone including the defendants. No one said a word except to ask if they could have their pictures. I gave them to them. I would love to be a court artist.

Thanks Cheryl.

Alicia, I couldn't help but paint you are beautiful as you are, but I guess you wouldn't want to be sold on a cup!

Yeah Floyd, but I love painting people and the mood and situation they are in at the time I photograph them.

Sharon, if I left their face off, it wouldn't be much of a portrait.

David, maybe I should paint tractors... oh yeah I do.

Bradford, thanks for the article, AND the short summation as I didn't understand the article!

I have not thought about the merchandise thing. I just figured no one would buy a cup with some non famous face on it.
I think I'll remove the merchandise available with my portraits on them and just sell prints of those. I was too lazy to do it before.

Thanks everybody!

Courtroom artists are doing it as editorial work, not commercial work. The law is very clear that editorial images are not subject to needing permission to use. Now if that artist starts selling t-shirts with those images, that's a different matter.

Selling prints is different than selling t-shirst or shower curtains with recognizable people on them.

That said understand the difference between artistic use and commercial use. There are many published cases on this issue. It's not as gray of an area as some might think. Also read up on Nussenzweig vs._DiCorcia, https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

While my view is that this should not be a problem, it was pointed out that anyone can sue someone else for anything. We live a litigious society. When in doubt, bail out. That's why I just avoid having recognizable faces in my photography.

Don't paint tractors. For heaven bids John Deere might sue you.

Ed,

Harley uses take down notices a lot. Small difference.


Dave

Chuck, very useful distinction, thank you!

Edward, I'm a Ford kind of girl! But that's probably right.

Ed, does that mean you are warned once to take it down?

First of all it's not a copyright issue. It's privacy rights and right of publicity.

In the US, for the most part, if the person was in a public place, privacy does not apply. In some European countries it's another matter as some of them, France in particular, have recently passed laws giving people more control over depictions of themselves and their property.

Right of publicity pertains to people who make a living from their image. They'd need to prove that your depiction of them caused them damage.

Of course, anyone can initiate a lawsuit for anything.

Thank You David. That does help! I doubt I will ever get to Europe.