Are "celebrity" portraits from photos valid?

[Juan Martinez]

I realise this thread is not the most active one on the forum, but I hope what I am providing is valuable.

Someone (I think it was Mary Reilly) brought up the issue of what is properly known as "personality rights". That is the right that people have to control the reproduction of their own likeness. It is just like copyright--where the creator has the right to control reproduction of his/her work of art--except it is for one's visage.

One key point should be understood about copyright (and hence, personality rights): they apply to everyone, not just to celebrities, and you don't have to do anything to get these rights. The very act of creation makes copyright apply to the thing created, through the operation of the law. Personality rights also exist by operation of law alone. You don't have to do anything other than be.

With some exceptions, you can buy and sell these rights at will, as if they were property (which they are). For example, if you paint a snow scene, you could then sell the right to use the image on holiday greeting cards but retain the right for any other reproductions, such as posters. Or, you can sell all of the copyrights and you no longer control the reproduction. Or, you can sell the physical painting itself, but keep the copyrights in the image. This latter one is the most common situation for a fine art painter.

Globally, copyright law is pretty uniform today on account of various international conventions and treaties. That doesn't mean that some countries aren't fairly lax in enforcing them, though. States such as Vietnam and Taiwan are notorious for their copyright infringements (pirating) yet they are subject to most of the laws as they are found in the US, Canada, UK, France, etc..

Before I get to the important issues for portrait painters; a further word on personality rights--they do not just adhere to celebrities. We all get the same rights, it's just that we are all not famous and recognizable. If you see your mug in an advertisement's photo of a crowd in front of some store, you could exercise your personality right and ask them not to print the picture. They may pay you, they may simply use a different shot, or they may digitally get rid of you. They could also just go ahead and you could sue them. But, it wouldn't be worth it because, other than on account of their being jerks, you wouldn't get much for your efforts because you aren't a famous celebrity. If you were, you could make a good case that the firm using your image was riding on the coattails of your success for their own gain, and without paying any compensation.

For portrait painters to paint celebrity paintings from photographs they must infringe on two copyrights: the photographer's and the sitter's personality rights. Or, they must get permission from both. This sort of thing goes on all the time without much reprisal because, usually, neither the photographer nor the sitter are any the wiser. However, it is still copyright infringement.

A unique aspect of the copyright law applies to portraits here in Canada. I would very much like to know if it is the same in the US, the UK, and elsewhere. If the painting, or the photograph, is a portrait, then the copyright automatically belongs to the sitter, not to the artist/photographer!! Think about that for a moment. This means that, by law, you cannot use that image even as advertising for yourself. You have to get permission . . . in writing. There is no implied right to use such images in self-promotion; it must be expressed in writing.

Of course, most of us don't do that because most of us, and the sitters, are unaware of the existence of this twist of the law. Nevertheless, if you normally use some form of written agreement when entering into a portrait contract, you might think about inserting a line in there that states the sitter gives you the right to use their image in self-promotion and for entering competitions, etc.. Maybe you already do this.

This specific issue applies only to portraits as opposed to other figurative art that may involve likenesses of models. Such instances probably fall under the work-for-hire doctrine (where you pay people to pose for you) or, otherwise are governed by normal copyright laws where you own the copyright, period.

Anyway, this law may not apply outside of Canada, but I would be surprised if that were the case. As I said, the copyright laws are pretty uniform all around the world. Also, it might be worth it to at least check more deeply into your copyright laws because this little tidbit took me a long time to notice--and I practiced intellectual property law for a number of years!

Finally, even if the law is not stated as clearly where you live as it is in Canada, the fact of the sitter's personality right would act as a de facto barrier to your use of his/her likeness, anyway. So, for that reason, it would again be wise to get their permission to use the image of your painting for self-promotion purposes, etc..

Thanks to those who took the time to read this. I hope some of this is useful. Please get back to me if their is anything I wasn't clear about. A lot of this is complicated and usually not something we need to get worked-up about, but it's out there. I haven't even touched on the "moral rights", but that's another ball of wax. I can already sense your eyes glazing-over.

Speaking of glazing . . . I've got to get back to work.

All the best.

Juan