Questions regarding Right of Publicity and Social Media

'Is it legal', 'can I do this' type questions and discussions.
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Scruffifyart
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Questions regarding Right of Publicity and Social Media

Post by Scruffifyart » Sun Jul 16, 2017 11:29 am

Hi,

I started doing sketches of people on Instagram about 3 months ago and created an instagram channel to showcase my work. I started out as a hobby and getting me back into drawing again since art school.

After 3 months I gained quite a following, and have been requested to do commissions and my friends suggested I should sell my work and merchandise them online and print the illustrations on t-shirts and mugs as well as posters.

Whilst these are only line drawings they are based on users photographs, and a friend has raised a concern around copyright/right of publicity of the individual.

The subjects are global, but some have quite a following of over 100k followers. Whilst they are not celebrities, they are very popular on Social Media.

I've always ask for their permission out of courtesy before I post their image, and 80% of them actually post my drawings on their channel as well. We have friendly dialogue and I also acknowledge the original photographer.

My question to this forum is what laws do I need to consider as it's a bit of a grey area as 1)They're not media figures 2)Illustrations of a person and selling merchandising of my artwork

I will of course ask for their permission. But do I need to protect myself by getting them sign some contract/copyright use of their image. Am I required to pay to use their image? I am based in the UK, and my products will be manufactured in the Uk as well.

Any advice would be welcomed. This is a passion project and I doubt I'll be able to make a living out of it, but it would be nice to get some pocket money for my drawings.

Thank you for any advice given.

Tony

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AndyJ
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Post by AndyJ » Sun Jul 16, 2017 6:46 pm

Hi Scruffifyart,

It is worth separating copyright from publicity right as they operate in different ways and protect different things.

Copyright
As you say that you base your portraits on photographs, this poses a significant risk of copyright infringement and thus it would be advisable to get any permission in writing. Just an email will suffice as long as it clear that the owner of the copyright is giving consent. Copyright infringement can occur even if there is no commercial activity associated with it. I assume that where you have been approached to do commissions, this has originated from the person who wishes to be the subject of your portrait. While they may be able to supply a picture of themselves, this does not of course always mean that they will be the owner of the copyright in such images. Getting permission doesn't sound as if it will be a major issue if many of your subjects are not celebrities outside their immediate social media following, but while they can give permission for any selfies, the actual photographer must be contacted for any other photographs. The credit is not essential if the photographer doesn't insist on it, but does no harm.

And don't forget that you will own the copyright in your artwork so make sure you assert your claim to it.

Publicity Right

This right is largely confined to some states in the USA and is unlikely to affect you if your subjects are not celebrities. The basis of most of the state laws is preventing the use of a person's 'personality' (including such things as their likeness, name, signature etc) in advertising or endorsements, without their permission. From this it can be seen that it is less likely, although not impossible, that most of your subjects would have sufficient fame to qualify under these rules. The fact that you are considering using the portraits on merchandising will increase the chance that the advertisng/endoresement aspect will come into play, however. So again if you can show that you have the subject's permission to use his or her likeness, this should protect you, which added to the fact that you can't be sued in the UK courts over any alleged breach of the publicity right, would put you on pretty safe ground..
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Scruffifyart
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Post by Scruffifyart » Mon Jul 17, 2017 8:03 am

Thank you so much for your swift response Andy.

This has put my mind at rest to know I don't need to draw up a legal contract makes this venture happen. My intention was to give my muses a small percentage of the profit anyhow as a gesture of good will hopefully will make it more attractive to them.

Thanks again.

Tony

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