Artists often find themselves in a bind when it comes to depicting individuals, whether a celebrity, model or everyday citizen, in their work. They can find themselves unsure, and sometimes confronted with backlash, regarding their rights when it comes to using an individual’s likeness in paintings, photographs and drawings. Countless celebrities have sued artists for using their likeness without permission, a few famous examples being Tiger Woods versus painter Rick Rush, Cheryl Tiegs versus sculptor Mihail Simeonov and The Three Stooges versus Gary Saderup. In all these cases, the artist won due to laws regarding freedom of expression (falling under the First Amendment), and Right of Publicity. Courts would likely rule in favor of an artist using the image of a non-famous citizen, too.
So, when are artists required to secure the consent of their subjects? In which circumstances are artists free to exhibit and promote their work? What are a model’s rights when it comes to posing for an artist? When does the use of an artist’s work infringe on copyright and intellectual property laws (a question most recently raised by this month’s H&M case)? We’ve laid out a basic guide to the protections that both artists and models—the subject of any work of art—have a right to.
The First Amendment Protects Artists
Though the First Amendment specifically cites freedom of the press and freedom of speech, its protections also encompass artistic expression such as plays, poetry, literature, music and of course, visual art (painting, photography, drawing, etc). At its most basic level, the First Amendment allows artists to use representations of individuals, famous and non-famous, in their work without repercussions.
A Model’s (Limited) Right of Publicity
The Right of Publicity can be defined as the right to control the commercial use of one’s identity. Though artwork is bought and sold, courts typically rule that the exhibition, printing and limited selling of any kind of art counts as artistic expression and does not fall under commercial use. However, if an artist were to print work depicting an individual on a t-shirt or postcard and sell it, that would count as commercial use and violate the model’s Right of Publicity. Additionally, Right of Publicity is not the subject of federal law like the First Amendment is, and is rather determined on a state level. This means that models are often at a disadvantage when it comes to suing over the use of their likeness. Many states, including New York, have extended the Right of Publicity to protect artists and their work. Other states, such as California, hold that if a person’s likeness has been depicted in an artistic manner (of course, whether or not a depiction is “artistic” is highly subjective), the artist’s First Amendment rights trump the model’s Right of Publicity. Click HERE to check Right of Publicity statutes by state.
Right of Privacy
The Right of Privacy is the federal right to be left alone and to not be made the subject of public scrutiny without consent. Applied to photography, this means that photos of an individual cannot be taken without consent when he or she has reasonable expectation of privacy—for example, in a bathroom. The Right of Privacy also stipulates that images of an individual must not unreasonably intrude into the subject’s private or family life.
In 2015, the First Amendment rights of photographer Arne Svenson controversially trumped the Right of Privacy when he went to court over his series, “The Neighbors.” Matthew and Martha G. Foster, subjects of Svenson’s series, sued the artist for using a telephoto lens to take photos of them through their apartment window without consent. New York State court ruled in favor of Svenson on the grounds that his work is protected under the First Amendment right to artistic expression.
Model Release Forms & Consent
Before getting into model release forms and when they are required, it should be noted that, in the case of photography, consent is implicit when a subject agrees to have his or her photograph taken. Consent is not required when a photographer shoots in public places (more on that in the following section on street photography).
Though laws regarding the issue vary from state to state, it can generally be assumed that any photo taken for commercial purposes requires a model release form (click HERE for a sample). When a model signs a release, he or she “releases” the rights to the images they appear in. This means the model acknowledges and agrees that the artist can do anything they would like with the photos, including publish, republish, distribute and edit, unless the model specifies restrictions.
Commercial purpose has nothing to do with making money. Instead, it is defined as advocating or sponsoring a product, service or idea. This means that even an unpaid model shooting for a non-profit would require a model release form, even though no money exchanged hands—though unpaid, the model still advocates for the non-profit’s ideas and services by appearing in a photograph used by the organization. However, if a model is depicted in a commercial image from the neck down, from the back (in any manner that would render them unrecognizable), the photographer does not need to use a model release form, even if he or she sells the photo to a company. Photographers should also be aware that the initial intent of their photos does not matter: even if they took a candid photo for artistic purposes, they would still need a model release form if said photo was used for a commercial purpose in the future.
Artists are free to show their work without prior approval of the subject(s) in exhibitions, in their portfolios, on their websites and social media accounts and in books or compilations of their work, even if this use of their work leads to sales. This use of artwork is non-commercial, as it simply promotes the artist’s artistic expression despite potentially leading to hired work.
Editorial photos also do not require model release forms. Editorial photos are images without commercial purpose, and are often used to accompany articles in newspapers, blogs and websites. In order for a photo to be considered “editorial,” its subject matter must somehow relate to the context (such as the topic of the newspaper article) in which it is used. Though the distinction between editorial and commercial purposes seems straightforward, any photographer unsure about the future use of an image he or she takes should play it safe and use model release forms.
Street Photography and the First Amendment
Street photography, whether documenting day-to-day life or fashion week street style, is protected under the First Amendment. Photographers have the right to shoot anyone and anything visible from a public space, unless shooting a space in which an individual has a reasonable expectation to privacy (as explained in the section of Right of Privacy). Of course, it would be illegal for a street photographer to use his or her work for commercial purposes without securing a model release form (see previous section).
Photo Agreements & Contracts: How Models Can Limit the Use of Their Likeness
Talent agencies representing models and celebrities create terms of use for any photograph taken of a client. A talent agency will typically create a photo agreement (click HERE for a sample of a restrictive photo agreement typical of a celebrity cover shoot), that legally limits the circumstances in which the resulting images can be used. It should also be noted that models are not required to be paid additionally, aside from their day rate (if there was one negotiated) for any image in which they appear unrecognizable (from the back, from the lips or neck down, etc).
See below for an excerpt from a general sample photo agreement.
Though talent agents are supposed to protect their clients with the use of photo agreements, it’s no secret that agencies often pressure young models into doing nude shoots with famous photographers. In these cases, it’s the responsibility of agents to act ethically when managing their talent (click HERE to read the Model Alliance’s “Models’ Bill of Rights”). Similarly, it’s always unacceptable for photographers to exploit their power and pressure models into situations and circumstances that had not been agreed to beforehand.
With scouting via Instagram becoming an increasingly popular way to cast photo shoots and art projects, unsigned models unfamiliar with the rights of photographers and artists often find themselves unhappy about the way in which their image has been used. Before agreeing to shoot or model for someone, one should draft a contract specifying boundaries regarding the use of his or her likeness. If you’re thinking about modeling for an artist, some things to consider including in a contract are compensation, hours and the extent to which you want your likeness depicted (nude or clothed, what body parts you’re comfortable exposing, etc). Of course, the extent of these limitations will likely affect whether or not a photographer will want to work with you, unless you’re a high profile celebrity. Models and photographers should also be aware that agreements made via e-mail and text message, as well as verbal consent, can count as legally binding contracts—a formal contract is not always necessary.
Grounds of Defamation
Defamation is defined as any action or other proceeding for defamation, libel, slander or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person. In broad terms, a defamatory image would falsely identify someone, ridicule or demean him or her.
If an artwork portrays or labels its subject as something he or she does not publicly identify as, the model has grounds to sue for defamation. For example, say a photographer takes a photo of someone and publishes it in a series documenting the LGBT community, or titles the work something along the lines of “Portrait of a Gay Man.” If the subject depicted does not publicly label himself as part of the LGBT community, he would have grounds on which to sue—unless, of course, he consented to be included in a series of that nature or titled as such in an model agreement, email or interview.
The Rights of Nude Models
Many art schools hire nude models for life drawing classes, and artists often hire models to pose in their studio. Art schools and artists typically operate by their own standards when it comes to working with nude models. How many breaks the model gets, hourly pay and more is all up to the employer, though some countries have laws regarding whether a model must be registered on an art school’s payroll. The website Brokelyn published a list of major New York City art schools and their rates for life models, which you can view HERE. The rates listed range from $12 to $28 an hour.
Artists who create works in a class depicting a nude life model are free to exhibit these works without consent of said model. As stated in the above section on model release forms, artists are free to show their work without prior approval of the subject(s) in exhibitions, in their portfolios, on their websites and social media accounts and in books or compilations of their work. This use of artwork is non-commercial, as it simply promotes the artist’s artistic expression. However, art schools and nude models often have their own rules and additional rates when it comes to taking photographs during a class live art session.
An Artist’s Image Rights
Earlier this week, H&M entered a legal battle with graffiti artist Revok after the Swedish retailer used the artist’s work without consent in an advertising video and photograph. In response, Revok’s lawyer sent a cease-and-desist to the company. H&M then filed a lawsuit against Revok claiming that because graffiti is illegal, his work cannot be protected by copyright law. Numerous artists and supporters of the street art community called for a mass boycott of H&M, leading the company to drop their lawsuit.
The work of street artists is completely entitled to copyright, regardless of the legality of their methods. A copyright, for any artist, requires only two things: that the work is original and that it is a tangible medium of expression. The copyright belongs only to the creator of the work. When a work was created in collaboration by more than one artist, all artists become co-owners of the copyright in the work, unless otherwise agreed on. Any artwork, published or unpublished, is protected by copyright law and cannot appear in print, video, TV, film or other artists’ work without permission. Read more on copyright basics HERE.
Another case that ultimately favored the artist unfolded in February 2018 when Jerry Wolkoff, owner of the 5Pointz complex in Queens, New York, destroyed the building in order to enjoy an increase in value from $40 million to $200 million, as well as obtain permission to build luxury condos in its place. 5Pointz was a mecca for graffiti artists from the 90s, when Wolkoff agreed to use the former factory as a showcase for local talent, until its destruction.
21 New York street artists sued and won $6.7 million in damages after Judge Block ruled that the 45 artworks at the centre of the case had “recognised stature” and must receive protection under the Visual Artists Rights Act (VARA). This outcome will certainly sway future cases regarding the legitimacy of graffiti as art, as well as the placement of street art on buildings.
