by Robert W. Clarida – Reitler Kailas and Rosenblatt, LLC.

Have you ever created a painting or drawing depicting a person but failed to get a model release from the subject? Of course. Does that spell trouble? Maybe. Depending on what sort of use you make of the image and where you try to sell it, you may find yourself unable to market your own work because of the so-called right of publicity, which prohibits the commercial use of a person’s likeness without his or her consent.

What Is the Right of Publicity?

Unlike copyrights and trademarks, the right of publicity is not created by federal law but by the laws of each individual state. These laws vary greatly in their details, but most states recognize a general right for a person to control the commercial use of his or her name, likeness, and other aspects of “personal identity.” So, for an obvious example, it seems safe to say that every state in the union would prohibit The Gap from selling T-shirts bearing the likeness of Monica Lewinsky without her permission. Some states have enacted statutes to govern these rights, some rely on “common law” principles developed by the courts, and some, like California, recognize both.

Not surprisingly, these state laws are extremely inconsistent. In New York, the right of publicity is written into the state Civil Rights statute, which provides that “any person whose name, portrait, picture or voice is used within this state for advertising purposes or purposes of trade without the written consent” of the subject may be sued for injunctive and monetary relief. Significantly, this right extends to “any person” in New York, not merely to celebrities or people in the public eye. So in New York, at least, you cannot market your charming sketch of the corner grocer as a poster for Boar’s Head cold cuts, no matter how unknown he may be.

In California, the statute covers largely the same conduct as the New York law but can also protect the rights of the deceased, both famous and obscure. Under New York law, once a person is dead they have no more right of publicity: witness throngs of vendors selling unauthorized John Lennon merchandise outside the Dakota apartment building where Lennon used to live on Central Park West. So long as those vendors only sell their wares in New York, and do not otherwise violate the trademark laws (merchandise which suggested a false endorsement by the singer might be actionable under the federal Lanham Act, for example, even if it did not violate state law), they are doing nothing wrong, because under New York law Lennon’s right of publicity died with him (Wisconsin law also limits coverage to living people).

However, those same vendors could not operate legally in California. The California statute allows the heirs or survivors of a deceased “personality” to continue to control that person’s right of publicity for fifty years after death, provided they register with the Secretary of State and pay a small fee. Indeed, even without filing the necessary paperwork, the heirs of a deceased person can enjoin unauthorized uses in California but cannot recover monetary damages until they have complied with the statutory formalities.

Other states go even further in granting postmortem rights of publicity, with Indiana and Oklahoma protecting the right for 100 years after death and Tennessee, home of the late Elvis Presley, recognizing it in perpetuity, so long as it continues to be used for commercial purposes. Other states, such as Washington, provide for a 10-year postmortem right for ordinary people but offer 75 years of protection for those whose images have “commercial value.” Accordingly, it seems safe to assume that even the long-deceased may have enforceable rights of publicity somewhere.

Exceptions

There are several limitations and exceptions to the right of publicity, most importantly those involving First Amendment protection for “newsworthy” images. The same likeness of Monica Lewinsky that would be prohibited on a T-shirt may be permissible as an illustration for an article in a commercial publication if two conditions are met. First, the image must bear some reasonable relation to the content of the article. Second, the article must concern a matter of legitimate “public interest,” a broad concept which encompasses everything from hard news to celebrity gossip. As the courts have defined it, virtually any story or article will qualify as a matter of public interest, so long as it is not merely an advertisement in disguise. Moreover, if the story itself is legitimate and the image is reasonably related, the likeness can also be used on posters and billboards advertising the publication, on the theory that the protected nature of the initial use extends to advertisements for the protected speech.

In addition, both California and New York recognize a “fine art” exception, also rooted in the First Amendment. The California statute exempts “single and original works of fine art,” which would appear to be limited to unique works, not including mass-produced reproductions. It is unclear whether the term “fine art” in this section is intended to apply only to works of “recognized quality,” as determined by expert opinion, or to any original work in a graphic or sculptural medium. It is also unclear whether “works prepared under contract for commercial use” could qualify for the exemption. (The California Art Preservation Act defines “fine art” as meaning only works “of recognized quality,” but not including works made under contract for commercial use, while the California Resale Royalties Act applies to “an original painting, sculpture, or drawing, or an original work of art in glass.” The right of publicity statute does not include any definition of the term “fine art.”) However, the statute does clearly provide that as with newsworthy publications, advertisements for legitimate works of fine art, such as gallery posters, do not violate the statute.

In New York, there is no direct statutory language regarding fine art, but the courts have recently interpreted the statute to exempt two and three-dimensional works of art from the law. In Simeonov v. Tiegs, the Civil Court held that an artist who created a plaster casting of model Cheryl Tiegs could “sell at least a limited number of copies” of the work without violating Tiegs’ right of publicity because such activities did not amount to a use of her likeness “for purposes of trade.” In this case, the New York statute was read to permit the sale of reproductions, at least in small numbers, to avoid creating a possible conflict between the state statute and the First Amendment.

Obtaining Permission: When and From Whom?

If none of the exceptions apply to you in connection with a particular project, and the subject has not been deceased for at least 100 years, you may decide that permission is required. If possible, you should think about this issue sooner rather than later. Under both the New York and California statutes, the subject’s written consent must be obtained before the use occurs.

Finally, you should be careful to obtain permission from all the proper parties. In one recent case, Wendt v. Host International, Inc., a corporation licensed the rights to make life-size robotic replicas of the characters “Norm” and “Cliff” from the TV series “Cheers.” Even though the copyright owner of the show granted permission, George Wendt and John Ratzenberger, the actors who portrayed the characters, brought a successful action for violation of their rights of publicity under California law.

There has been some discussion in recent years about creating a single, federal right of publicity statute which would eliminate the confusing inconsistencies in the various state laws, but no such change in the law is expected anytime soon. Until it happens, the prudent artist has only two choices: master the byzantine laws of all fifty states or get those model releases.

Robert W. Clarida, an associate in the New York law firm of Cowan, Liebowitz & Latman, is an expert on intellectual property issues, and has a wide variety of clients in the creative arts. Before becoming a lawyer in 1993, Clarida earned a Ph.D. in music composition, taught music history and theory at Dartmouth College, and wrote music for several dance companies in New York.