Do you ever use real people in your art? Maybe you depicted someone’s likeness in a painting; used a family photograph in a collage; mentioned your neighbor in a literary work. Maybe you directed a video, using footage taken from a public place. Maybe you’ve designed an advertisement for a client, using or referring to a famous person.

There are scores of reasons you might “use” real people in your art. And there are scores of reasons you can be sued for doing so. This month we will look at five legal theories that could land you in hot water.

Before we begin, please consider several caveats:

First: The “Big Five” theories we’ll discuss are not the only games in town. Whenever you use any existing material in your work — whether it’s a real person’s name or image, or something owned or created by a real person — you also need to think about copyright and trademark. Don’t forget those two major beasts just because we aren’t discussing them today.

Second: Copyright and trademark are governed by federal law, so by and large the rules are the same no matter where in the United States you happen to live. The Big Five, however, are all uniquely creatures of state law. And as you’ve heard me say on countless occasions, the law varies from state to state. Not every state recognizes each of the Big Five as “actionable,” and among those that do, there can be significant differences in how a state interprets and applies each theory.

My suggestion, therefore, is this. Use our discussion of the Big Five as an initial checklist when you’re thinking about using a real person in your art. If your guts tell you there is likely to be a problem, and you can live without using this person in your art, don’t use the person.

If using the person is really important and you want to move forward, though, you’re going to need legal advice. (And this article is NOT legal advice!) Call an attorney. To help streamline your consultation, bring along your list of the Big Five. Tell the attorney that you’re aware of these potential Big Five issues, and start by asking the attorney to answer two questions: a.) “How, if at all, might the Big Five create liability for me in this state?” and b.) “What issues other than the Big Five (including copyright and trademark) might be a problem?”

Third (and sit down, because you really won’t like this one): You might have to consult more than one attorney, since you could potentially be sued in a state other than your own. In such case, assuming you have “minimum contacts” with the other state (called the “forum state”), the law of that forum state will apply. So before committing to using a real person in your art, you and your attorney should think about which other states are likely to be of concern. And you should then get “Big Five” advice specific to those other states.

Finally: We’ve talked about this before, but it bears repeating. The “law” exists in many forms, and it resides in many places. Two of the most common forms are “common law,” which refers to the law created by judges in their opinions; and “statutory law,” which refers to bills passed by the legislature and signed by the chief executive. Either way, it’s “the law,” and we have to obey it. But here’s why I bring this up: Sometimes the Big Five exist in the common law of a state; and sometime they exist in the statutory law of a state. Your attorney needs to consider both possibilities.

THE BIG FIVE

#1: The Right of Publicity. Worry about this one, generally, if the person you’re intending to use is a celebrity. As we shall see, the “Remaining Four” big issues involve right of privacy laws, which are available to celebrities and non-celebrities alike. In most states, however, right of publicity laws apply only to the famous. They exist to protect people — whose identities already have commercial value — from the financial loss that occurs when someone uses their name or likeness without first obtaining a release.

Actors from the TV show Cheers prevailed on a right of publicity claim, for example, when a string of airport taverns produced life-sized robots modeled on the actors’ images. (Think robot “Norm” and robot “Cliff,” sitting at the airport bar.) Nobody asked the actors who portrayed Norm and Cliff if it would be okay to use their images. And since those actors were celebrities, using their images without permission was like stealing. The string of airport taverns rode the wave of their fame, for free. That violated the actors’ rights of publicity under California law.

Now, don’t think you can never use a famous person’s image. The First Amendment does still protect artistic expression. And though it would take volumes to explain this in detail, the general concept is this: If you depict a famous person for purposes of your own expression or commentary, you’re likely to be okay. In the Cheers example, using the actors’ images served an exclusively commercial purpose: to attract travelers to the bar. If, on the other hand, you include a famous golfer in your painting expressing the history of the Masters of Augusta, the law is more likely to be on your side.

Let’s move on. Our next four theories involve different claims for “invasion of privacy.” (That’s right: There isn’t just one potential claim for invasion of privacy, there are four; and you could be sued separately on any or all of them.)#2: Appropriation Invasion of Privacy. This one’s kind of similar to the right of publicity, except it applies also to normal (non-celebrity) people, and it involves injury to the person’s psyche as opposed to their pocketbook. Essentially, this theory prohibits the unauthorized use of a person’s identity for purposes of advertising or trade. To prevail under common law, a victim must show measurable damage to their peace of mind or dignity.

Often, however, this type of claim will appear in a state’s “statutory” law, and when that’s the case it’s typically easier to prove. Under many statutory provisions, the actual unauthorized use of a person’s identity for purposes of advertising or trade is enough to state a claim; the victim doesn’t necessarily have to show damage to their peace of mind. So make sure you know if your state has such a statutory provision.

#3: Intrusion Invasion of Privacy. I hope this one won’t be a big concern for you, since it involves the manner in which you obtain the image or information you subsequently disclose. In order to win on a claim for “intrusion” invasion of privacy, the person suing you (the “plaintiff”) usually must establish:

• That you intentionally intruded into their seclusion without permission (e.g., you broke into their house; you crashed their party; you spied into their bedroom window);

• That they had a “reasonable expectation of privacy;”

• That your actions were offensive or objectionable to a reasonable person;

• That the matter at hand involved something private; and

• That the plaintiff suffered emotional anguish.

#4: Defamation and False Light Invasion of Privacy. Defamation and “false light” invasion of privacy are technically two separate theories. They’re so similar, though, I’ve chosen to discuss them together. (Plus, I figured you’d be happier with Five reasons to get sued, rather than Six!)

You’ve probably heard about libel and slander, two types of the wrong known as “defamation.” Libel refers to defamatory statements that are written; slander to statements made verbally. To prevail in a defamation action, the plaintiff usually must establish:

• That you made a false statement about him or her;

• That you made the statement to at least one person other than the plaintiff;

• That the statement was understood by others as being about the plaintiff; and

• That the statement caused injury to the plaintiff’s reputation.

You’ve probably also heard this, about defamation: The truth is an absolute defense. If the statement you made was actually true, the plaintiff loses.

Now let’s consider “false light” invasion of privacy. Some states don’t even recognize this as an actionable theory because it’s so similar to defamation. The only real difference is that, in a false light claim, the plaintiff need not establish injury to reputation. Instead, the plaintiff must show that your statement placing him or her in a false light was “highly offensive to a reasonable person.” Otherwise, the elements of proof in a “false light” claim are substantially the same as in a defamation claim.

#5. Disclosure Invasion of Privacy. Remember in defamation, where the truth is an absolute defense? Not so, with this next theory. In a “disclosure” invasion of privacy action, the plaintiff is complaining that you disclosed something private about him or her that really is true; and that the disclosure would be considered “highly offensive” to a reasonable person. In this case, if you disclose something private and embarrassing about a person, the fact that it’s true actually makes things worse because the plaintiff is all the more embarrassed!

I’ve had many clients say, “but the truth is an absolute defense!” As you now know, that’s accurate if we’re just talking about defamation. But disclosing something embarrassing, even if it’s true, can still be actionable as a “disclosure” invasion of privacy.

You might now be wondering why this article is titled, “Part I.” As I wrote, it became apparent I was not going to have enough room to offer examples about what types of activities have, in actual cases, constituted violations of the Big Five. And I think that’s important, if you’re really to understand where the pitfalls lie. So next month let’s return for Part II, and I’ll dish up some examples for you to consider.

Until then, those of us in the northern climates (where winter struck with a vengeance while it was still fall!) will appreciate any and all good wishes for an early spring.

Copyright © 2008 Elizabeth T Russell. Beth Russell (www.erklaw.com ) is a musician and attorney admitted to practice law in New York, Connecticut and Wisconsin. The author of the book Art Law Conversations (available at www.rulypress.com ), Beth can be contacted at beth@erklaw.com .