Your image - your rights
 

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?

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

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

Yes, you do! Unless you sell it!

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. ;)

Newsworthiness is the trump card.

Even civil rights privacy interests are subordinate to it.

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.

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.

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.

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.

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.

Nice idea!

Sadly, it probably has more to do with the fact that they are well paid -- by us, the subscribers -- to keep doing it. Cut a newspaper's subscriptions by 50% overnight out of disgust, and it would stop. Cause an advertiser to fail to meet financial forecasts because of a boycott based on its support of garbage in the media, and changes would be made.

It isn't going to happen. Some of the greatest revenues being raked in today are generated by a show in which contestants drink pureed beetles and grubs and egg yolks, to see who can keep it down and thus "win." That's the industry that we're hoping will exercise good judgment and display good taste. It isn't going to happen. Not if Jerry Springer has anything to say about it.

I caught he*l just this past week for not being "up on" a recent legal development in New York that, another editor told me, had been "all over TV." Well, the fact is, I don't watch TV. Haven't for years. I can't stand it. Can't stand wading in the cesspool of ignorance and bad taste and bad writing. Most radio is just as odorous (and odious), full of hatemongering windbags and high-wire fraud acts that make "Off" the best channel selection (short of revolution, which we've become too lazy and compliant to even court.)

I agree that the year-round sweeps-week media mentality is degrading and bottom feeds off the most toxic holding ponds in our culture. It disgusts me every time I see a microphone or camera lens pushed in the face of a grieving or tormented or heartbroken soul. But we tune in. For every one of us who just turns them off and tunes them out, a thousand more sign up for satellite radio so they can mainline their Howard Stern fix first thing in the morning and check out of life.

That's the bee in my bonnet for the moment.

What more to do about it? Go ahead and paint those Chinese mah-jhong players, and what the heck, the Irish musicians, with all the dignity that they deserve. Avoid any caricature or false light or mean-spirited invasion of their lives. Hold the result up for comparison with the sinister and the base, and let those who still are capable of choosing, rather than merely being led like cattle, make their choice.

Disclaimer -- I did not mean by comparing them to Rivera or Stern or Springer fans to cast any aspersions on the good members of the cattle community, or any bovine named or unnamed.

I think you've summed it up Mr. Steven Sweeney.

You've exorcised the bees from my bonnet.

While this thread was developing, I was constantly in mind of one of the iconic, Depression-era photographs that we

Florence Owens Thomson was a Cherokee from Oklahoma, though she had been living in California for some time. Her husband

Steven,

Thank you for sharing that story.

Not to argue, I agree with you totally, but - some of these intrusive photographs do make people take action. At the expense of the person photographed unfortunately. Take the Katrina victims for example. Reading about demolished homes or even seeing photos do not have the same impact as seeing a real live devastated person. Seeing them...brings the human side to any story and Im willing to bet it encourages folks to give money, volunteer their time, etc.

Im wondering how many of us would allow our image (taken at our worst) if it meant it would move people to help?

Just another thought on the subject.

Steven:

I remember that photograph, and your story brings to mind maybe the most famous of all depictions from that era: John Steinbeck's "The Grapes of Wrath."

I've watched that movie many times and I am still moved by it. One of the great American stories. It too portrayed the "Okies" in circumstances which were strained at best. Of course it was only a movie, and brought out at a time removed from actual events. Much different than the story which you convey.

Kim:

In the case of the Katrina victims ...

To my sensibilities there is a wide chasm between documenting the circumstances in order to gain public support for relief, and gross exploitation for commercial gain. What could be gained further by pointing a movie camera at a person wading in the remains of her life; while she is shouting, crying and cursing at the camera man to please stop filming. Does this compell me to give more?

In my cynical mind I don't think the media cares a tinkers **** about rallying public support. They understand that their actions do have an effect in that regard, but I believe it is purely coincidental to their purpose.

I heard recent'y that there have been three movies made about Amy Fisher. I suppose there will soon be a movie about the lost girl in Aruba. You could make a strong case that we are given exactly what we want, and deserve. I wonder ...