I think it's important to remember Neil's caveat in the initial post: the
decision derives from New York law that may differ from that in other
states.
The operative concept isn't always “art” versus
“commerce.” For example, the California Civil Code gives very
strong “right of publicity” to living persons and to heirs of
deceased persons:
The only exemption is for “news, public affairs, or sports broadcast3344. (a) Any person who knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or
goods, or for purposes of advertising or selling, or soliciting purchases
of, products, merchandise, goods or services, without such person's prior
consent, or, in the case of a minor, the prior consent of his parent or
legal guardian, shall be liable for any damages sustained by the person or
persons injured as a result thereof.
or account, or any political campaign.” Section 3344.1 gives similar
rights to heirs or assigns of deceased persons. The prevailing party is
entitled to attorneys' fees and costs.
As noted by Judge Gische, that law (under a previous numbering) was tested
in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387
(2001), which held that only “transformative” art had First
Amendment exemption from California's “right of publicity”
laws. That case involved an artist, Gary Saderup, who sold reproductions
of charcoal drawings of the Three Stooges without the consent of Comedy
III, the registered owner of the right of publicity. The Court held that
Saderup's drawings were essentially literal likenesses that simply profited
from the fame and goodwill of the Three Stooges. The Court upheld the
lower court award of $75,000 (Saderup's estimated profits) in damages and
$150,000 in attorneys' fees, and noted that selling reproductions of the
drawings in any form required the permission of the holder of the
right of publicity. The U.S. Supreme Court declined to hear the appeal.
Presumably, most photographs would be even less transformative than a
charcoal drawing, so that at least in California, a model release would
seem a good idea for anything but bona fide news. Some other states
have similar laws, so a discussion with one's IP attorney might be a good
investment for anyone who sells images (graven or otherwise) of people.
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