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Regarding Public Figures

In some very limited instances, a photograph of a public figure may be used without permission but these circumstances must be analyzed very carefully. If the person is a public figure (a celebrity, a politician and the like) or is a private figure but one who is involved in a matter of public concern (a news story for instance) and in both instances the use of the photograph is directly related to the personís public status, then the courts have said that in those instances, the right of the person to his or her privacy gives way to the publicís right to get the public information. This is a very limited set of circumstances. If you intend to use the photograph in a permissible way without the subjectís consent, you must have a release from the copyright owner of the actual photograph. In a news story for instance, this may be the photographer or it may be the newspaper, news organization or the like. It requires some research. And no matter what the topic, if you intend to use a photograph of a person for commercial purposes, then you absolutely must have a signed license in writing granting you permission.

Celebrity photographs are not in the public domain. However, celebrities enjoy little, if any, rights of privacy, and their rights of publicity are limited to commercial uses. Unauthorized photos and illustrations of celebrities are common in the media, because most media depictions of celebrities are considered expressions of free speech about matters of concern to the general public. Thus the photographers and publishers of such images are immune from liability for violating the celebritiesí rights of privacy and publicity under the First Amendment. The photographers and/or publishers, own copyright in their photos of the celebrities. You need permission from the photographer who took the photo you used as a reference for your painting. Under copyright law, the photographer is the original ďauthorĒ and copyright owner of the photograph. A painting based on the photograph is a copy of that work. Thus, the painting constitutes infringement unless you have the copyright ownerís consent. Moreover, this is true whether or not you make reproductions of the painting, because the painting itself is already an unauthorized copy of the photograph.

Miss Monroe
This photograph of Marilyn Monroe is in the public domain in the United States because it was published in the United States between 1929 and 1977, inclusive, without a copyright notice.

With regard to celebrity photos, approximately 30 states provide celebrities with a right of publicity in their name, likeness and reputation. If your use a celebrity's protected rights without permission, you will be guilty of violating the celebrity's right of publicity and, therefore, if your work is sold or exhibited in one of those states, you may be liable for damages. It's worth noting that in many states the right of publicity survives the famous person's death for a protracted period of time.

For these reasons, artists must be doubly careful when using photographs of people as references for their work. You may need multiple permissions, not only from the photographer, under copyright, but also from each person depicted, under the rights of privacy and publicity. Generally, artistsí models have consented to use of their image in the artwork by virtue of being paid for their services as models. However, such implied consent might not extend to commercial goods. Itís always a good policy to get written releases from your models, or anyone whose likeness appears in your work.

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