Q. When I take a photograph of someone, do I need a release from that person to use the image in a painting? Is verbal permission enough? What about using an image of someone’s dog or vintage car?
A. Individuals who are famous have a right of publicity for their images during their lifetimes, and, in some states, after death as well. Those who are not famous have a right of privacy. It’s, therefore, important to obtain a release from anyone whose photograph you shoot—or whose image you paint, draw or sculpt—since otherwise you may be liable for violating that person’s right of publicity or right of privacy. The model release should be in writing, not just oral—because the person may later deny having consented to the use of his or her image in your work.
Although human beings have rights with respect to the use of their images, animals do not. It’s, therefore, not unlawful to use photos that you’ve taken of dogs, cats, horses or the like in your work, even if the animals belong to someone else. Of course, if you wish to copy a photograph—taken by someone else—you must first get the photographer’s permission: He or she owns the copyright.
It would not be a copyright infringement to photograph, paint or sculpt a car, boat or plane, though a recent case has raised questions about the unauthorized use of an automobile manufacturer’s trademark (i.e., model name and logo) without obtaining permission. If the viewer of the art could reasonably believe that the auto manufacturer authorized, sponsored or permitted use of its trademark, then the unauthorized use may be unlawful.
If, on the other hand, the ordinary observer merely recognizes the trademark but would not think it was a permitted or sponsored use, then there is no infringement. If you have questions about using trademarks belonging to someone else in your work, you should consult with an experienced intellectual property lawyer before proceeding.
Note: Copyright laws are subject to change. This article was originally published in the July/August 2007 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.