Photo legal issues

[Allan Rahbek]

Originally Posted by Jean Kelly

Well, I noticed a young man with body piercing all over, earrings and hoops inserted everywhere, and tattoos overall. Needless to say, I was fascinated. I remember the fight in my brain, should I or should I not, try to take this photo.
Jean

I had a similar experience some time ago at a vacation.

I went to a marked and saw a man that was tattooed on top of his head (where the hair once was). I was so fascinated by his look that I had to talk to him about it. Or maybe to pay him some interest in return for the photos I took of him afterward.

He was clearly proud of his decoration and obviously used to get attention about it. I told him that I was a painter and would like to, maybe, paint his portrait because of this tattoo.
He had no objection toward this project.

But if I ever get sued because of the painting I will point out that it does not represent him, because, as he can see, there would clearly be something wrong with the mouth.
Artistic liberty

[Jean Kelly]

I get it, heehee.

Jean

[Julie Deane]

I'm reviving this thread to mention another possible problem to avoid. I just starting realizing that this may become a problem for me if I don't take care of it promptly.

I'm participating in a project to portray a "fallen soldier" from Iraq. The man's mother requested it. It turned out when I got to the home that he was married. The wife was not present. Mom wants a portrait of her son. So far, fine, I guess. But, legally, isn't the wife the one who is in the position of being the one who can give permission to use her husband's image?

In many cases I'm sure it would be fine, and it may be here. But - what if the inlaws hated each other? And the widow would withhold permission if asked? Yikes.

So I'm going back and asking for a written model release from both parties. If they don't both give it, well, I guess I could hope for the best, give the mom the portrait, and not show it anywhere except my portfolio.

Just something to chew on...

[Leslie Ficcaglia]

Julie, I think you're right, and that getting a release from both mother and wife would be a good idea, although then you'd have both of their artistic preferences to deal with.

However, an article at http://www.publishingattorney.com/rightpriv.html notes:

"States have also reached different conclusions regarding whether the right of publicity survives the death of an individual. Generally, in those states that permit survivability it is only permitted for celebrities but even these states differ on how long the right of publicity survives for the deceased celebrity."

I had also heard before this that the right to privacy ends with death.

Back to the other issue, however, I was fascinated by this discussion because I have a lot of material from a recent trip to France, and just completed a painting of a woman whom I photographed as she sat outside with a friend at a Montmartre caf

[Julie Deane]

Thanks so much for that quote, Leslie!

I just contacted the mom, mainly to see about getting in touch with the former daughter-in-law, since I wanted family "photos" in the background and obviously would need permission.

And, wouldn't you know it: "Me and the wife don't get along so well." Great. ...

I've decided that I'll go ahead and do the portrait, sans model release, sans other family members, sans contacting her. I will not be show it in much more than my portfolio, unfortunately, because if I were the wife, I would object to my husband's portrait being shown around (as in shows or a website) without my say-so. I want to be sensitive to that.

Darn.

About your photos: If you change the likeness, I would think you'd be safe.

[Tom Edgerton]

I had a friend who, as a commercial illustrator, was successfully challenged (he had to pay fees and penalties) by a model whose pose he used in an illustration for a poster, and who recognized this use solely by the position of her hands--he had put an entirely different head on the pose!

John, I'm surprised here in NC that anyone has advised you that portraits may be service-only items and not subject to sales tax. The verbiage on this that I've seen was very clear that portraits are taxable merchandise, unless it has changed. But to your point, the state will never penalize you for giving them money, only for not doing so. So I always charge sales tax.

As for out of state sales, NC puts the onus on the buyer here that you have to report purchases from out of state and pay "use tax" on them. So it releases the seller from another state from having to be knowledgeable of NC law and to try to collect tax from anyone ordering from here--an impossible expectation. My assumption has been that other states operate the same way, and that if a client commissions a portrait from another state, I don't have to collect sales tax on it--that it's their responsibility to report it and pay tax within their own state if required.

I have verbiage that addresses retention of rights on both my commission agreement and the bill of sale. I figure that if my clients don't raise a question after having been informed twice, then I'm okay to use the painting's image in advertising etc. and I do so. To Chris's point, if there's any uncertainty, as a courtesy I let my clients know what I'm doing and ask how they wish to be identified (or not), like on my website for example.

I'd have an issue with a client if they published a giclee of their child's portrait and sold it, but so far this hasn't happened. If they use it on a Christmas card, though, I consider it free (and welcome) dissemination of my work and I'm grateful for any effort that doesn't cost me anything.

But all of this discussion tells me that I need to talk to the legal guys again and tighten all of this up. I like some of Terri's more specific verbiage. Thanks to everyone for the research, links and advice.

--TE

[Leslie Ficcaglia]

I can somewhat understand the model's position in the example you cited, Tom. She posed and was paid for her posing, so its use without further recompense, if such recompense was promised or implied, could be actionable. Where you're taking photos of people in public places, though, it would be difficult for them to be certain that they were used as the inspiration for a painting if you made sure there was no likeness. But the whole situation seems much more complex and full of pitfalls than I'd thought.

[Tom Edgerton]

Yeah, Leslie, I agree. I'm not saying she didn't have grounds, my point is just that even with changing a likeness, one thinks they have themselves covered, but it's amazing how it can come back on you.

Best--TE