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The Right of Publicity and Your Portraits..

The following topic has come up repeatedly over the years in forums on Redbubble, LinkedIn topics and in Facebook groups…
I have also had private emails asking the same question…
“Can I paint and sell the images of celebrities
"?

Here is some information from the Kodak website which expresses the law in a nutshell..I shared this on RB several years ago and recently the topic came up for discussion with the same misconceptions

“The Right of Publicity makes it unlawful to use another person’s identity for commercial advantage without permission. A person’s “identity” includes his or her appearance, voice, name, nickname, professional name, and other distinctive characteristics.

The Right of Publicity prohibits you from selling photos of any recognizable person, including celebrities, without their permission, even if you digitally manipulate the images.

The Right of Publicity even applies after a person’s death. Celebrities and their estates now own and control the commercial use of their names and likenesses, both during their lifetimes and for at least 100 years after their deaths. This is true of all well-known people: performers, sports figures, models, actors, politicians, CEOs and public figures from any walk of life.

Remember: In order to use a Gallery Marketplace service [e.g. RB] to sell an image containing a recognizable person, whether or not that person is a celebrity, you would need two consents: copyright permission from the photographer, AND permission from the person(s) who appear in the photo under the Right of Publicity"

In addition to the Right of Publicity, the Right of Privacy protects all people who appear in photographs. The Right of Privacy protects against intruding into someone’s private affairs, disclosing their embarrassing private facts, and publicly putting them in a false light.
For example, a person who was photographed in an embarrassing private moment may have a basis for objecting to your publishing or selling that picture as a violation of the person’s Right of Privacy
"….Kodak Gallery.com…

Note: These rights include simply displaying the photo or painting without intent to sell on a public site..

Comments

  • Mieke Boynton
    Mieke Boynton5 months ago

    I never knew that, Janis!
    Thank you for posting this.
    I wonder whether that’s the situation only in the USA, or whether other countries have similar laws…
    And it sure makes you wonder how RB allows this situation to occur… http://www.redbubble.com/explore/photography! They’re RB’s all time popular photographs.

    (Mind you, I also wonder how come it’s okay for 5 of the top 10 RedBubble “photographs” to not be photographs… but that’s a topic for another day!)

  • Kodak is an American company and the site is based in the U.S….besides which most countries including Canada, have signed the Berne convention which means the laws apply to them as well…however it ’s even more stringent in Europe and Britain…

    – © Janis Zroback

  • POD sites generally don’t or aren’t able to monitor posted works, but have to comply with takedown notices…the risk people run when they post photos without permission is that they can be sued…why take the risk?..always get permission first..

    – © Janis Zroback

  • Mieke Boynton
    Mieke Boynton5 months ago

    …sorry, Janis! I meant Canada! :(

  • See my first response…

    – © Janis Zroback

  • metriognome
    metriognome5 months ago

    There are some very conservative interpretations out there too. This has just been rejected, as requiring a model release, by a very well known stock photo site:

  • The lawsuits are growing so sites are protecting themselves…

    – © Janis Zroback

  • Cindy Schnackel
    Cindy Schnackel5 months ago

    In the US, when photographed in public, there’s no expectation of privacy but there’s always more to it than a one-liner saying you have, (or don’t have!), a particular right.

    The privacy related laws are usually state laws, though copyright in the photo itself is federal law.

    I’ve seen some very transformative art that depicted known persons without just copying someone’s photo. This brings another element into it, (at least in the US that I know of); an artist’s rights of free speech and expression. Reproductions seem to complicate that issue further.

    I don’t envy photographers and artists who like to depict actual people. Some of their work is beautifully done. It’s a risk area that calls for some good legal advice, to know how to stay out of risky areas. As can be seen in the many examples online of star wars knock offs, etc, one can’t go by what’s out there as any guide what’s actually legal.

    There are times I’m so glad I paint imaginary things!

  • There is always the risk of a lawsuit by those who believe in their right to privacy or who control the sale of their images why take a chance..

    – © Janis Zroback

  • Ann Warrenton
    Ann Warrenton5 months ago

    Thank you Janis.

  • You’re very welcome Ann..

    – © Janis Zroback

  • Cindy Schnackel
  • Thanks so much Cindy.

    – © Janis Zroback

  • IDGARA
    IDGARA5 months ago

    Thank you Janis.
    I notice that popular social media sites and auction sites have no trouble"selling" images, copies of images,, and perhaps we also have no say in our work being “pinned”, used to gather up “likes” to create a marketable presence for person “X”.
    Anyway: Thank you for posting this.
    Regards
    IDGARA

  • You’re very welcome…for every image that slips under the radar, many are sent take down notices…still others get sued…the federal courts just settled a huge million dollar suit and many more are in litigation right now……I avoid likes unless it’s an artist I’m following and we do have a say regarding pins…I am on their case as soon as I see my work being infringed..

    – © Janis Zroback

  • Noel Elliot
    Noel Elliot5 months ago

    Here is a link I posted sometime ago Janis…It is about Australian photographers rights and responsibilities. It may be of interest in this debate Link

  • Thanks so much Noël…

    – © Janis Zroback

  • “A legacy of our convict past is that Australia has never had a Bill of Rights. Consequently there has never been any concept of a constitutionally protected Right To Privacy. Because of this, our common law has always rejected attempts to prohibit photography by merely claiming privacy rights”….that is truly shocking…so anyone can be photographed and exploited?

    – © Janis Zroback

  • Mieke Boynton
    Mieke Boynton5 months ago

    Thanks for that Noel… obviously things are very different in Australia!

  • “A legacy of our convict past is that Australia has never had a Bill of Rights. Consequently there has never been any concept of a constitutionally protected Right To Privacy. Because of this, our common law has always rejected attempts to prohibit photography by merely claiming privacy rights”….ALL I can say is Wow…

    – © Janis Zroback

  • Mark Wade
    Mark Wade4 months ago

    Hmmm…well I’ve seen some beautiful work here (and other sites) and wondered if the releases had been worked out. Not an easy market to navigate I imagine.

    In photography, there are “editorial” allowances where someone’s likeness can be used unabated, but the spirit of the law was based on the fact that the story behind the image would eventually lose interest and so the use of the image would as well.
    With internet publishing, that image can be accessed for years and years. It’s no longer a physical publication that will get thrown out with the garbage.

  • Yes indeed anything posted on the Internet will be there forever…

    – © Janis Zroback