RE: The approximate image of...

Subject: RE: The approximate image of...
From: Andrew Warren <awarren -at- synaptics -dot- com>
To: "'McLauchlan, Kevin'" <Kevin -dot- McLauchlan -at- safenet-inc -dot- com>, "techwr-l -at- lists -dot- techwr-l -dot- com" <techwr-l -at- lists -dot- techwr-l -dot- com>
Date: Thu, 4 Dec 2008 14:55:39 -0800

McLauchlan, Kevin wrote:

> I understand that makers of films/videos/printed mass media are
> supposed to get a signed waiver before using someone's recognizable
> image in a published work. There's some fair-use doctrine that might
> protect purveyors of news... or I could be wrong on that...

In California, blanket exemptions exist for news, public affairs
(whatever that means), sporting events, and political campaigns.

> What are the generally recognized limits of such requirements? Is that
> the general case? Even if it's a photo of a street scene?

The model's privacy and publicity rights, the publisher's free-speech
rights, and the libel laws all vary from state to state and country
to country, so "generaly recognized limits" has little meaning.

In some countries, people DON'T have commercial rights to their
likenesses, so they can't sue for commercial misappropriation... But
they're still free to sue for invasion of privacy or libel if that's

> How about if I just draw something that could be mistaken for a
> likeness of a specific person if one was liberal in one's
> interpretation?

A drawing is no different from a photograph; each is a "likeness"
as far as the law is concerned. A bad drawing, I guess, would be
like a blurry photo... Up to the judge to decide.

> Is there any need to get permission to post it, print it, or otherwise
> make it public? Does it matter whether it's a situation where the use
> of the image helps me make money?

If it's for commercial use, like you're using it to advertise a
product (or, worse, you're selling copies of the image), you really
really REALLY want a waiver or contract signed by the person whose
likeness you're using.

If "helps me make money" just means that you'll put it on a website
that displays Google ads... You wouldn't be the first person to
do that, but it may still infringe on the model's rights.

> Anyone have experience in this area?

Lots of attorneys do. If you'd rather just wing it, a web search
for "right to publicity" or combinations like "model waiver likeness
law" will give you lots of general theory and information for
various jurisdictions, none of which is a guarantee that what you're
planning to do will be legally defensible. Here's something, for
instance, that's old but looks interesting anyway:


=== Andrew Warren - awarren -at- synaptics -dot- com
=== Synaptics, Inc - Santa Clara, CA

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The approximate image of...: From: McLauchlan, Kevin

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