A slew of copyright infringement suits in the last two years within the fashion industry have one theme in common: the paparazzi are the ones filing against celebrity’s unauthorized use of images by the copyright-holding photographer. The legal trend has incited celebs to raise broader legal questions on social media, concerning the extent to which they are able to control how paparazzi profit from their likeness (think: supermodel Emily Ratajkowski’s viral essay on reclaiming her image after appropriation artist Richard Prince blew up and sold an Instagram post of the model, while Khloé Kardashian tweeted her disdain in having to license images first).
This question becomes far more intriguing when we consider how freedom of artistic expression might contend legally with a celebrity’s right to their image and attached commercial interests. In other words, is there a right of publicity case to be made here?
While copyright law gives the creator a bundle of exclusive rights over an artwork (unless created under employment or “works made for hire” arrangement), the right of publicity law in the U.S. is a property right that gives the subject of the artwork control over non-consensual commercial exploitation of their likeness, name or persona. There are certain exceptions to this right, namely when they are in connection with public affairs, sports broadcasts or political campaigns. So, while infamous Richard Prince is allowed to ‘rephotograph’ art under the U.S. fair use exemption for copyright infringement – to Ratajkowski’s chagrin – Prince cannot commercially exploit the same (by selling it for the promotion of a brand etc.) without Ratajkowski’s permission. Prince can, however, still license/sell ‘newsworthy’ photographs to media outlets in light of free speech protections under the First Amendment.
In 2016 Kanye West challenged all twelve celebrities who were depicted stark naked in his “Famous” music video to sue him. The rapper’s multi-media installation of life-like celebrity sculptures – Rihanna, President Trump and his wife Kim Kardashian-West to name a few – in the visuals is not only deliberate in its use of the celebrities’ likeness, but likely non-consensual as well. But can the video’s subjects invoke a right of publicity claim? As a Rolling Stone article aptly puts it, “The Famous video isn’t an ad, even if its Tidal-exclusive status does serve the commercial purpose of attempting to lure subscribers to the streaming service. It’s what courts call an “expressive work” – you know, “art” – and not even California’s strict Right of Publicity statute can prevent artistic uses of a celebrity image.” In fact, the strongest and longest of such celebrity / personality rights legislation is in California (70 years post-mortem) which permits audiovisual works under its right of publicity statute.
But what happens when an artist takes a painting of a celebrity without their consent, mass-produces it and sells the reproductions to the public? Famed golfer Tiger Woods initiated a right of publicity suit against sports painter Rick Rush in 1998 for selling prints of his ‘The Masters of Augusta’ online, which depicts Woods at a game. But the court found for the defendant artist, on the basis that Rush’s painting was not merely a reproduction of Woods’ image and likeness; rather, it was “significantly transformed” into art, including numerous artistic elements such as “a collage of images”. Essentially, the court noted that artistic expression is afforded greater protection than commercial speech, and in this case, Rush sought to express a message in depicting “a moment of historic value”.
The Californian Supreme Court has long recognised a balancing act between publicity rights and freedom of speech in art. The distinguishing factor between protected and unprotected expression is whether or not the work is “significantly transformative”. In 1968 the court held that defendant artist Gary Saderup’s lithograph of “The Three Stooges” – which he used to make silk-screened T-shirts – was not sufficiently transformative since the value of the work resulted primarily from the Stooges’ fame as comedians, as opposed to its own expression.
So how exactly does Andy Warhol get away with those prints of Marilyn Monroe or Elizabeth Taylor? The court – rather unconvincingly – considered Warhol’s silkscreens protected under the right of publicity statute because they “went beyond commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself”. Apart from the controversial nature of this rule which sees the judge step into the role of art critic, this approach has been contested in legal circles. As Professor and IP expert Jennifer Rothman says, “[it] disfavors realistic portraits and less famous artists, and provides little guidance going forward”.
Warhol, however, may have been fortunate to have created these works in the 1960’s, before most states even enacted laws protecting the right of publicity. Currently, about half the states in the U.S. have statutory laws that distinctly recognize publicity rights. The strength of this right varies across states; in Tennessee the post-mortem publicity right is 10 years, in Indiana it’s 100 years, meanwhile New York has only recently enacted its 40 year publicity statute.
Much of Western Europe, including France, Spain and Italy, recognise this right too. However, there is no such thing as a right of publicity law in the UK. Depending on the context, using a person’s image for commercial purposes (without their express permission) could expose artists to a potential legal action for defamation or for ‘passing off’, UK art lawyer Henry Lydiate explains, “which means an infringement of the law would take place if it could be inferred from your artwork that a link existed between you and another person when this was not the case”. Other precautions for UK artists include potential infringement of the photographer’s or publisher’s copyright if works are based on photographs of a celebrity, and carefully choosing where in the US to exhibit the work if it uses a celebrity’s likeness. Data protection laws – think: UK GDPR – can also be used by both private individuals and celebrities to prevent the processing of their personal data, such as publications of photographs or film.
But if you’re not a celebrity, do you still have publicity rights? An advertiser can’t use a person’s image for commercial gain, but an artist might be able to. Between 1999 and 2001, the artist Philip-Lorca diCorcia took a series of candid photographs of passersby in Times Square, titled “Heads”, making a profit of $240,000. In 2005, Erno Nussenzweig – a private individual and Orthodox Jew whose image was featured in Dicorcia’s series without his knowledge or permission – sued diCorcia for violation of New York’s privacy laws and freedom of religion. The crux of the issue was whether “Heads” could be legally termed “art” or not. New York’s Supreme Court found for the artist diCorcia, arguing that the artist’s reputation, the fact that the images weren’t used to advertise an exhibition and that the images were taken as part of a creative process meant that they constituted art. The court further opined that someone’s images are protected by the First Amendment, even in ways that they may not necessarily approve of.
That said, even celebrities themselves cannot always maintain agency over the use of their image. A recent case in point is Emily Ratajkowski, who describes a series of encounters with male artists who have legally exploited her likeness for commercial gain in an article for The Cut. In a bid to even the playing field, the model sold her own NFT titled “Buying Myself Back: A Model for Redistribution” at a Christie’s auction last May. “Works of unnamed muses sell for millions of dollars and build careers of traditionally male artists, while the subjects of these works receive nothing” Ratajkowski explains on Instagram. By using the latest trend in cryptocurrency to reclaim public use of her images, not only will Ratajkowski earn a resale royalty each time the NFT is sold, but should she be prevented from selling or reposting the image in the future, the file will remain on an immutable blockchain ledger as she intends.
In an age of social media and camera phones, what can we learn here? For artists who wish to depict someone in their artwork, UK lawyer Rosie Burbidge explains in her book European Fashion Law that the safest course of action is to obtain written consent from the subject in the form of an image rights waiver, which should set out the intended uses of the image in question before distribution. The general rule of thumb, Burbidge says, is if the person features in 20% of an image, or for more than half a second in a video. For ‘sitters’ who wish to challenge legal norms that uphold free speech over commercial interests, as Ratajkowski has, perhaps the digital realm is the new battleground for copyright and publicity disputes.
Words: Lizzy Vartanian Collier/ Rinnah Anosike