"Rights of publicity" or "intellectual property rights" in historic photo

[Beartracks]

I thought there was a "legal forum" here at DU, but now I don't see it.

Anyhow...

I've got a right of publicity question regarding a famous deceased historical person where there is still an entity acting as a conservator who defends rights of publicity (image, likeness) for this person. Defending the person's image makes sense to me so that people can't just sell mugs, posters, porta-potties, etc., with the person's likeness, including photos where that person was clearly the subject.

My question is in regards to using a photo that's in the public-domain from a historical event where that famous person happened to be in attendance and is recognizable in the photo. It is not a photo "of" this person, although it is a posed shot of a very large group of people. If I were to sell posters with this image (it's of historic interest, and yes it is available for commercial use), then could the conservator of that particular famous person claim an intellectual property rights violation even though their person is clearly not "the subject" of the photo?

[NJCher]

1. If it's public domain

I think you’re good to go.

Maybe fbaggins will answer. He has a good legal sense. Plus there are numerous lawyers on the board.

My sense comes from teaching media production at the university level.

[FBaggins]

8. That's incredibly flattering, but others are dramatically more qualified

I might have taken a relevant course 30 or so years ago... but my interests are primarily in the areas of constitutional law and related political science. I'm entirely out of my depth here compared even with your stated experience.

I would defer to the professor in #2 below

[Bernardo de La Paz]

2. IP rights (copyright) are for life of creator plus 75 years. Rights of publicity limited in other w

IP rights kick in if the work was created after 1927: the Disney rule, almost literally the Mickey Mouse rule because of his first appearance in "Steamboat Willie" in 1927. (USA laws)

The exact details vary from country to country, like 50 to 75 to 100 years and if you have any doubts, concerns do some research or consult an IP lawyer.

In your case, I don't think it is an IP question but, as your concern indicates, more of a publicity right.

Rights of publicity continue as long as the person is alive. You can't use their likeness for gain even if you own the copyright unless you have a properly signed model release. The main reason is endorsement.

Some aspects of that continue after death as rights the estate has. I'm fuzzy on publicity rights since although I've created content I've never exploited likenesses or been worthy of exploitation personally .

However, if they are in a large group and there is historic interest and there is no question of endorsement, then I think you would be okay. But I am not a lawyer, and people like tRump use litigation as a weapon even when they don't have a case.

[Tomconroy]

3. My answer is worth about as much as any annonymous

Last edited Thu Sep 30, 2021, 07:46 AM - Edit history (1)

Person's on the internet but here goes:
Technically, the answer to your question is: Yes. Anyone can bring a claim. Winning the claim is another matter.
It's been 40 years since I looked at the Right of Publicity but I think using the image of a celebrity for economic exploitation is going to be problematic even if the image is in the public domain.
A lawyer would probably want to see the image, know how and why you are going to use it, know whether the celebrity actively exploited their own image for monetary gain and how long the celebrity had been dead before giving you an opinion.
He'd also need to know what state you lived in and the size of your intended market. The right of publicity came out of California. Probably not too many other jurisdictions have law on it.

[stopdiggin]

6. also going to bring up

the context of what the purveyor's message and intent are. If your piece is about civil rights, or union strikes (or country club gala in the 60s) - and the privileged individual happens to appear - that's one thing. If your subject matter is focused on that same individual, or a movement or theme they strongly represent - then the fact that they are present in a group setting provides much less cover. In that case clearly the intent of the photo/image resides in the famous individual.

[OldBaldy1701E]

4. Here is a simple thought

If it is in America, and it is something that whomever might be able to sue for some profit, then they will try it. Just getting a potential lawsuit out in the public eye can do wonders for whichever side plays the media game the best. Greed rules the day, and you may as well have an attorney on retainer if you wish to attempt this. Just my opinion based on decades working in entertainment production. Yes, you can probably use it, but having to defend against several big lawsuits from various agencies and conservators would do their work for them if they can just hold out longer than you can.

[bucolic_frolic]

5. I once tried to sell some golfballs online

A mixed lot. One of the brands didn't like being seen with other brands and called copyright infringement on it for posting a photo I took. So if golf balls have rights, I suppose estates do too.

[PatSeg]

7. K&R to respond later