Copyright and the Rights of Models
by
Cindy Hill, Esq. for Fine Art Registry™
In 1985, a young woman from Afghanistan stared out at us from the cover of National Geographic, her green wolf-eyes piercing into our souls in a disturbing and unforgettable manner. The photograph, by Steven McCurry, went on to print in National Geographic calendars and on the cover of a book of their most memorable photos. It has become one of the most recognized pieces of photographic art of our era. Commentators and critics have noted that the young woman’s visage challenges us to consider the plight of her people, refugees from a war torn nation – or the plight of all people fleeing war and natural disaster, their spirits undaunted, their needs intense.
I do not believe that the young woman was paid at the time of the photo. She was not a professional model. I do not know whether she signed a model release at the time or not, though I’d hazard a guess it would be unlikely. Her image was captured under the rubric of journalism, to illustrate an article about newsworthy events in Afghanistan. Still, the image went on to make money for the photographer and the publication; I’d be guessing again, but given the image’s popularity and multiple commercial uses, probably a good deal of money.
In 1884, a painting by John Singer Sargeant made its debut in Paris: A portrait of a woman in a black dress, with one strap hanging in a subtly suggestive fashion off her shoulder. The model – Virginie Amelie Avegno Gautreau, an ex-pat New Orleans native imbued in Parisian society – had originally contracted to have the portrait created, but after society responded with scandal about the falling dress strap (which, unlike the classical nudes it hung near, was deemed outrageously provocative), refused to take ownership of the work, and sought over the years to preclude its public display – even after the artist repainted the dress strap back up on the shoulder where it properly belonged. Now, years after the death of both artist and model, the work – now entitled “Madame X”– hangs in the Metropolitan Museum in New York, where its image appears on notecards and countless other paraphernalia sold in the museum store and catalog. (Note: for the complete tale, read ‘Strapless’ by Deborah Davis, Tarcher/Penguin Books 2004.)
Could Steve McCurry and John Singer Sargeant have precluded other artists from creating images of these same models, on the grounds those would be ‘derivative works’ of their creations? Could they sell, display, and capitalize on these images with or without their subject’s knowledge, approval, or receiving compensation? What about subsequent owners of these works, like the Met? The answers involve an interlaced mesh of legal principles that incorporate not only copyright statutes, but also law regarding privacy rights and publicity rights.
Let us say that, while I walk down a city street, I take a photograph of you. I own the copyright in that photograph. However, you, the subject, have privacy rights and publicity rights regarding your own image, separate from my copyrights. The right of privacy is a right to be left alone, or not cast into the public eye against your wishes; the right of publicity is a right to benefit from the commercial gain another person might make by use of your image.
There is no federal statute regarding publicity and privacy related to artwork, only case law setting out on a case-by-case basis what the common sense boundaries of publicity and privacy ought to be, depending on the person and situation involved (though many states have state laws on the subject). Under American common law, courts are inclined to look at these factors in determining whether privacy and publicity rights have been violated:
First, is the person clearly recognizable in the work? Madame X, the Afghan girl (whose name is Sharbat Gula), and Mick Jagger in the Warhol portrait, for example, are all clearly recognizable. They aren’t faces in a crowd, they aren’t obscured by an umbrella. Consider the couple in the famous photo ‘the Kiss’. Although they aren’t obscured, they apparently aren’t recognizable either, since no one has ever figured out who the guy was.
Secondly, did you have the person’s permission to take the photograph? In the case of someone who posed for a photograph or painted portrait, even in the absence of a written agreement, the permission to capture their image is implied. In other cases – the person who walks into my frame as I try to take a picture of the Eiffel Tower – the artist did not have the subject’s permission to use their image; but often in these cases the subject is unrecognizably a face in the crowd.
Thirdly, does the work show something embarrassing or negative about the subject? I don’t know what Sharbat Gula feels about the public response and political assumptions that are attributed to her image. And Madame X had agreed to have her portrait painted with the scandalous strap position – only protesting after the public had a scathing response to the work. So does that constitute something ‘embarrassing’ or not? Courts would look at each individual case to decide. In some cases the answer is more obvious. If I take a picture of a stranger on the street without their permission because I find some disfigurement they have to be artistically interesting – or, if I snuck up a tree to take pictures of someone in their bath – I am artistically, capitalizing on something that exceeds the legal bounds of privacy.
Lastly, is the work used ‘commercially’? Journalism has strong constitutional protections and is not considered in the same class of ‘commercial’ use of a photo as one used in an advertisement or sold as a poster or print. If you happen to be a supermodel who was posing for a film crew when I wandered by and snapped a shot of you which I then sold to magazines far and wide, the courts are likely find that I didn’t violate your publicity rights because, as a public figure, you’d placed yourself purposefully in the limelight, and my published photo may be seen as Constitutionally protected journalism in the public interest. Similarly, photos of newsworthy interest – grisly accident or disaster scenes, the face of an Afghan refugee – are under the rubric of the First Amendment power of a free press.
But the question of whether an image is used ‘commercially’ can get complex if the use changes. Let us assume that the photo of Sharbat Gula was either taken with a release, or due to the fact that the model implicitly gave permission and it was used for journalistic purposes, its original appearance on the cover of National Geographic was wholly lawful. What about when it gets put on the front of a book of collected ‘best photos,’ where it is used to draw customers’ eyes in bookstores and facilitate sales? Or when it’s plastered on billboards to advertise that same book?
Under American law, permission, and likely compensation, might have been required, if there had been a lawsuit and if a court had determined that these uses were commercial and beyond the boundaries of the original implied permission of the subject. But the photo having been created in Pakistan, these laws did not apply. However, in 2002, Steve McCurry and National Geographic went back to Pakistan and located Sharbat Gula of their own accord, and provided financial assistance to her and her family, helping to send her three daughters to school and allow her to fulfill her life’s dream of a pilgrimage to Mecca. Despite not being legally required to do so, the photographer and publication fulfilled the ethical precept which the law is intended to foster.
Once a model is dead – like Singer Sargeant’s Madame X – rights of privacy no longer apply in most ordinary cases; however, publicity rights regarding commercial exploitation of images, voices, and so on, may well continue on as a right of the person’s estate if they are of a nature to be considered economic assets during the person’s life – such as a famous movie star, broadcaster, and so on. This is why tell-all biographies and memoirs can be published with impunity after a person’s death – and my photo of a passerby’s fascinating scar or tattoo could also likely be published after that person’s death without violating their privacy rights.
Finally, it seems quite clear that the model or subject of a painting, sculpture, or photo would retain the right to have his or her image re-created by other artists, in any and all genres, throughout his or her life. Despite my dad owning the copyright in hundreds of pictures of my smiling face through the years, he can not preclude other artists from photographing or painting my image (but I sure can!). However, it remains an open question of legal interpretation whether another artist could publish an artwork which very carefully copies the pose, lighting, and composition of a prior portrait without comprising a ‘derivative work,’ where not only the model but the composition as a whole is ‘too close’ to the original piece. (There were several other portraits painted of Sargeant’s Madame X, but none in the same dress and pose as his scandalous work.) We’ll explore in another column the hot-button issue of copying an artist’s ‘style’ and when it constitutes copyright infringement.
Unfortunately Singer Sargeant’s painting was tied up and precluded from public view for years due to the angst that evolved between painter and subject over the fallen shoulder strap. Artists who include models in their works would be wise to register their copyright in their images with the U.S. Copyright and an easily-accessible archive like Fine Art Registry so that subsequent owners or viewers wishing to use the image can locate the copyright holder; however, it would also be wise to include in the notes about a work of portraiture, sufficient information about the subject (or a note as to how that information may be available from the copyright holder or the work’s owner) to allow subsequent owners to contact the model (or determine if the model is deceased and what any lingering estate rights might be) as well regarding any potential use of the work. This kind of information can not be included in a Copyright Office registration, which is one more reason why a private archive service like Fine Art Registry makes sense as a depository of critical information regarding the legal status of a fine artwork.
The original artist would, or course, also be wise to get as much information about their subject as possible, assuming that the subject is to play any recognizable or important role in their work. A model release agreement is ideal, and although in many journalistic settings it may not be possible, in most portraiture and painting environments, it is well worth it to get a full model release before including the image of any subject, and risking losing the opportunity to have your work hang at the Met until after you and your model are long gone.
— Cindy Ellen Hill, Esq. | September 29, 2006
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