Your image - your rights

[Mike McCarty]

This subject has been discussed before on this forum, but I've had some questions in light of what I saw on TV during hurricane Katrina.

There are people like myself who, after asking permission, would take a picture of a stranger in the park. After taking this picture they may use it as a reference for a painting, and proceed to use all there skills to put this person in the best and most flattering light. However, other than the verbal permission, there is no contractual agreement which gives the artist the right to use the strangers image. The consensus on the forum has always been to get a models release signed before proceeding to use the image liberally.

Why is it that TV reporters can act in such a cavalier manner in capturing real time images of people experiencing the most humiliating moments of their lives? There is no doubt that the images are used for profit. Even with the subject shouting their objection to the reporter they would proceed.

A person like myself who wants to create a thing of beauty with verbal permission is advised that they should get a signed legal release, and a TV reporter can proceed not only without a verbal or written permission, but, in the face of a shouting objection.

Is there some perverse right that the media has that I do not?

[Michele Rushworth]

I wonder if "news" falls under the "fair use" portion of privacy and copyright laws. Doesn't seem right, does it?

[Carolyn Bannister]

This is something that I've never understood, how another person can have the right to intrude in another's life and then plaster the image all over the place for everyone to see and to make a profit to boot.

Doesn't make sense to me.

Following on from that, yesterday I was speaking to a client who told me that she had been very busy all day printing and making Christmas cards for everyone ( the parish and family) using the photograph I had sent her by email of the portrait.

I jokingly said that she obviously hadn't read the small print then and had missed the rules about copyright!

Thinking about it later I was flattered that she wanted to use the image but this started me thinking about future work. This was a commissioned portrait so she would obviously only be sending the cards to close family and friends but what if I sell a figurative piece to someone and they use the image in the same way.

Do I still have copyright over the image even if they have purchased the original?

Carolyn

[Claudemir Bonfim]

Originally Posted by Carolyn Bannister

Do i still have copyright over the image even if they have purchased the original?

Yes, you do! Unless you sell it!

[Jeff Fuchs]

I believe this question has been tested in many court cases, and the press is protected by the constitution in ways that artists are not.

High courts have stated that freedom of the press cannot be maintained if they cannot publish pictures of news events.

Our Founding Fathers hotly debated the inclusion of Freedom of the Arts in the Constitution, but many of them felt that Copley had portrayed them in a less than flattering manner, and dropped this item from the Bill of Rights, just to spite him.

[Steven Sweeney]

Newsworthiness is the trump card.

Even civil rights privacy interests are subordinate to it.

[Mike McCarty]

Who is the press and how do they prove that they are? Is it by certificate, a license, a press pass? Or, is it a state of mind?

If it is my intent to "spread the news" of portrait art, and I choose you as part of my copy, who would dispute that (Other than plaintiffs lawyer)?

I'm going to make myself a press pass. I'm going to work for the World Wide Portrait News Agency and I'm going to enlist (enoculate)each and every one of you by issuing a like pass.

[Steven Sweeney]

[D]oes not ... the parliamentary debate go on ... in a far more comprehensive way, out of Parliament altogether? Edmund Burke said that there were three Estates in Parliament, but in the Reporters' Gallery yonder, there sat a fourth Estate more important than they all."

-- Thomas Carlyle, On Heroes and Hero Worship (1841)

You can quite easily become an ordained minister by submission of the requisite fees online or through the mail, and apparently the events over which you officiate are legally recognized. So, sure, start the press-pass presses, and crank 'em out. Put one on the dashboard of your vehicle -- maybe the parking meter attendant will swoon in the presence of a landed Fourth Estater, and forget to write you up. (More likely, he or she will hand you the citation and suggest that you drop it off on your editor's desk, and have a nice day.)

And all will probably be well until one appropriates the likeness of a non-public figure (or, without license, the rights in another, authorized depiction of that person) who is "newsworthy" only because it serves the publisher's commercial or self-interest that day, and who sees neither the honor nor the humor in the publicity or the laissez faire philosophy.

At which time the best advice is probably moot -- that one should have already made arrangements to be either rich beyond avarice, or sufficiently impecunious as to be judgment-proof.

It's not a question I've never thought about, because in my travels I've snapped a lot of photographs of people, without permission, many of which I intend to one day use in some way as reference materials. If it's a shot of a group of elderly men in a Beijing park, dressed in Mao-inspired fashion and poring over a mah-jhong game unfolding on the ground in their midst, I feel pretty "safe" in appropriating that scene, though it's hardly newsworthy. Other photos of, say, quite accomplished musical performers on Grafton Street in Dublin -- well, I'm a "wee bit" less secure in my certainty that I'm out of firing range. Photos taken in the U.S. are even more closely scrutinized.

A fallible but practical "test" might be to ask oneself, if the lens were turned around, and without one's permission, his image were commercially exploited merely for another's personal gain, would one take moral if not legal offense.

It's the sort of dilemma that Calvin would see in black in white, and Hobbes would paint in rich ambiguity.

[Steven Sweeney]

P.S. Please consider embedded microchips rather than inoculation. I'm just not a needle guy. I don't even let them squirt those dead flu mites into me at this time of year -- and I'm not too far away from being in an "at risk" group. Gives me the willies.

[Mike McCarty]

The reason for bringing this up I guess has more to do with my disgust for media practices than the practices of a few lowly painters, however, our practices do cross a bit in purpose. I'm sure the [media] is arguing in some venue every day that they are dutifully serving the public good, and not just gratuitously selling soap. Bolshevik, I say.

And all will probably be well until one appropriates the likeness of a non-public figure (or, without license, the rights in another, authorized depiction of that person) who is "newsworthy" only because it serves the publisher's commercial or self-interest that day, and who sees neither the honor nor the humor in the publicity or the laissez faire philosophy.

I really don't look to go around snatching peoples images without their permission. I always ask permission when I'm in those circumstances (except, as in your example of the old men in the park. But, one wonders if a class action suit couldn't be drawn up on behalf of all old men in all parks). I do bristle a bit at the notion of carrying around a legal document and whipping it out with ink pen. Sorta takes the smile off everyone's face. I always try and send the subject a copy of the image in an e-mail and then lock down their permission in that exchange of e-mails, thus having a written record.

I just can't understand why the media gets such a total pass for such egregious behavior such as I saw in New Orleans. The answer must be that the media can expose anyone, at any time, under any circumstances, and they alone are the arbiter of that individuals rights.

I don't know why I get these bees in my bonnet.