There was a related kerfuffle in the game tech community circa 2023, I think? Someone seeking a job at one of the big game designers read the fine print on the application, and found sneaky language about freely giving up their image rights once they clicked Send. The company wanted applicants to give up their likenesses, etc. for widespread use in console games, without receiving compensation or even acknowledgement. I was really upset that this wasn't mentioned on mainstream news. Even if someone isn't creative and thinking about intellectual property protection, shouldn't Americans be discussing the personal security / privacy issues involved with image rights if they're unlocking their devices with facial recognition?
Thanks Colleen, this is such a barbed issue but something creatives need to be mindful of. Of note, YouTube is a prime example fraught with hypocrisies —by many artists no less. It's evident that most people don't understand the basic principles of why copyrights even exist let alone the differences between it, patents, and trademarks, or how it relates to likenesses, fair use, etc. I've often heard Copy WRITE or copy WRITTEN, and a kitchen utensil is required to pry my eyes loose from the reflexive eyeroll. No sooner do I get them free and a claim to "educational or review purposes" is used to rationalize an infraction that I have to reach for the utensil again.
The people running their mouth on the copyright issue, they all cry FAIR USE and they don't know what it means. And they really, really don't know that it is determined on a case by case basis.
Like I wrote, no one HAS to take action, but the line is different for everyone. Some people may be super offended, some not. You simply don't know, so every time you use a likeness that doesn't belong to you, you take a chance.
When the first issue of my comic, Sisterhood of Steel, came out, it had a painted cover. Some obscure B-rate actress I'd never heard of sent me a threatening legal letter claiming the woman on the cover was based on her. I checked with the artist who said nope. So I (politely) told her to go piss in the wind. Luckily, that was the end of it. But you just never know what's going to set someone off.
Your caution is wise. I had an artist client recently who offered to use a friend, a rising actor, as a reference model for a character in a new comic book. The actor was flattered and excited to be included. But his lawyer insisted that his client get a fee for the use of his image, turning what was hoped for as a cool thing for a friend into a cash grab. We declined and his image was not used. Remember too, that right of publicity law is not the law everywhere - not all U.S. states have this law and there is no federal right of publicity, and laws in the rest of the world are equally unsettled.
I got a brief education on not obtaining a model's release when the "Techno Viking" case lit up the internet for a day or two. It was such a successful lawsuit that you can't find "Techno Viking" anymore, and his real identity was kept secret. You were either there and can recite the lore, or you missed it and now you can only grab wisps of what was once a whole web.
I wonder if Techno Viking's privacy will survive A I
As an aside, things get weird with locales, too. I've watched several lawsuits involving graffiti artists who used copyrighted characters (and in the case of the creator of "Cherry Poptart," a promise NOT to sue, ever, when a late friend turned Cherry into a two-story wall panel in Dallas's Exposition Park), and some efforts by film and TV crews who use particular graffiti as backdrops to make sure the artists don't sue. I had a sideline involvement with that several years ago: at the edge of Dallas's Deep Ellum area is a mural featuring a big black-and-white TV with images of Robby the Robot and an Acrocanthosaurus (the predatory dinosaur that left most of the tracks in Dinosaur Valley State Park in Glen Rose), and I took a photo of it to prove to people that it actually existed. About three months later, I received a series of really weird phone calls from a movie production assistant: apparently a small film shot a scene in front of the mural, the PA was told to get permission for its use, ran a quick Google search, came across my photo, and assumed I was the rights holder. It took three calls to confirm that she understood that no, I wasn't the artist, and no, I had no idea who the artist was and I couldn't speak for them. The PA finally stopped calling, but I wait for a new call one of these days, especially since someone vandalized the mural, the artist came back to repair it, and converted the Acrocanthosaurus with a bog-standard Tyrannosaurus playing a guitar...
This is just brilliant. What started off in my work as a loving homage to my favourite musician is giving me pause for thought. Trying to get his permission proving very difficult.
Well, maybe, maybe not. I've paid as little as $20 an hour, as high as $100 an hour, and got many, many photos out of the sessions and a release. But the only photos I ended up using a lot of were the ones of Jed. He was AMAZING.
A lot of artists out there have no idea at all. They really don't understand that just because something is "fan art" that doesn't mean laws don't apply.
With that Amy Grant lawsuit, what were they thinking using a Christian artist's album cover for a character like Doctor Strange. I met her briefly once and saw her many times when my parents dragge dus to Jesus festivals and have always thought of her as The Real Deal. With how her words have been twisted at times by an interviewer I guess she had zero tolerance with what Marvel did.
Well, Marvel didn't do it, the artist did. It was such a dead on copy of the album photo, I was surprised any pro artist would go that far. But he did. Now, would I have sued? No, but I'm a part of fan culture, I see it all differently. But did she have a right to sue? Yeah, definitely.
There was a related kerfuffle in the game tech community circa 2023, I think? Someone seeking a job at one of the big game designers read the fine print on the application, and found sneaky language about freely giving up their image rights once they clicked Send. The company wanted applicants to give up their likenesses, etc. for widespread use in console games, without receiving compensation or even acknowledgement. I was really upset that this wasn't mentioned on mainstream news. Even if someone isn't creative and thinking about intellectual property protection, shouldn't Americans be discussing the personal security / privacy issues involved with image rights if they're unlocking their devices with facial recognition?
Shouldn’t everyone?
People need to remember the fate of Carrie Fisher regarding rights to her images. Always read the fine print.
Thanks Colleen, this is such a barbed issue but something creatives need to be mindful of. Of note, YouTube is a prime example fraught with hypocrisies —by many artists no less. It's evident that most people don't understand the basic principles of why copyrights even exist let alone the differences between it, patents, and trademarks, or how it relates to likenesses, fair use, etc. I've often heard Copy WRITE or copy WRITTEN, and a kitchen utensil is required to pry my eyes loose from the reflexive eyeroll. No sooner do I get them free and a claim to "educational or review purposes" is used to rationalize an infraction that I have to reach for the utensil again.
The people running their mouth on the copyright issue, they all cry FAIR USE and they don't know what it means. And they really, really don't know that it is determined on a case by case basis.
Which is only getting fanned by the fires of AI.
Yep, and Denmark just gave private citizens the right to their likeness.
I always wondered how Paul Gulacy got away with it. Maybe the images were just different enough.
Like I wrote, no one HAS to take action, but the line is different for everyone. Some people may be super offended, some not. You simply don't know, so every time you use a likeness that doesn't belong to you, you take a chance.
When the first issue of my comic, Sisterhood of Steel, came out, it had a painted cover. Some obscure B-rate actress I'd never heard of sent me a threatening legal letter claiming the woman on the cover was based on her. I checked with the artist who said nope. So I (politely) told her to go piss in the wind. Luckily, that was the end of it. But you just never know what's going to set someone off.
Well Said! You really can never be too careful with likenesses! And some “Celebrities” just need to “Get Over Themselves!”
Your caution is wise. I had an artist client recently who offered to use a friend, a rising actor, as a reference model for a character in a new comic book. The actor was flattered and excited to be included. But his lawyer insisted that his client get a fee for the use of his image, turning what was hoped for as a cool thing for a friend into a cash grab. We declined and his image was not used. Remember too, that right of publicity law is not the law everywhere - not all U.S. states have this law and there is no federal right of publicity, and laws in the rest of the world are equally unsettled.
Excellent points!
Very good points, Colleen.
I can see why you chose him as a model reference. He has a face the camera loves.
All planes, he's stunning.
I got a brief education on not obtaining a model's release when the "Techno Viking" case lit up the internet for a day or two. It was such a successful lawsuit that you can't find "Techno Viking" anymore, and his real identity was kept secret. You were either there and can recite the lore, or you missed it and now you can only grab wisps of what was once a whole web.
I wonder if Techno Viking's privacy will survive A I
You can read about it on Wiki now.
As an aside, things get weird with locales, too. I've watched several lawsuits involving graffiti artists who used copyrighted characters (and in the case of the creator of "Cherry Poptart," a promise NOT to sue, ever, when a late friend turned Cherry into a two-story wall panel in Dallas's Exposition Park), and some efforts by film and TV crews who use particular graffiti as backdrops to make sure the artists don't sue. I had a sideline involvement with that several years ago: at the edge of Dallas's Deep Ellum area is a mural featuring a big black-and-white TV with images of Robby the Robot and an Acrocanthosaurus (the predatory dinosaur that left most of the tracks in Dinosaur Valley State Park in Glen Rose), and I took a photo of it to prove to people that it actually existed. About three months later, I received a series of really weird phone calls from a movie production assistant: apparently a small film shot a scene in front of the mural, the PA was told to get permission for its use, ran a quick Google search, came across my photo, and assumed I was the rights holder. It took three calls to confirm that she understood that no, I wasn't the artist, and no, I had no idea who the artist was and I couldn't speak for them. The PA finally stopped calling, but I wait for a new call one of these days, especially since someone vandalized the mural, the artist came back to repair it, and converted the Acrocanthosaurus with a bog-standard Tyrannosaurus playing a guitar...
This is just brilliant. What started off in my work as a loving homage to my favourite musician is giving me pause for thought. Trying to get his permission proving very difficult.
I'm thinking model are too pricey for lowly comic book artists to afford. But if one can, great!
Sorry I missed dropping by your table at NYCC. It was a busy weekend! Next time!
BTW, it is so inexpensive to go buy photo packs of models online for reference these days, you don't need to hire one.
Well, maybe, maybe not. I've paid as little as $20 an hour, as high as $100 an hour, and got many, many photos out of the sessions and a release. But the only photos I ended up using a lot of were the ones of Jed. He was AMAZING.
Thanks, I had never even considered this risk.
A lot of artists out there have no idea at all. They really don't understand that just because something is "fan art" that doesn't mean laws don't apply.
I’m now wondering about using quotes from people also. Like little turns of phrases that I love that people say.
It depends.
Yeah, I know this could have used a better edit, sorry, it was an off day.
With that Amy Grant lawsuit, what were they thinking using a Christian artist's album cover for a character like Doctor Strange. I met her briefly once and saw her many times when my parents dragge dus to Jesus festivals and have always thought of her as The Real Deal. With how her words have been twisted at times by an interviewer I guess she had zero tolerance with what Marvel did.
I looked up the cover and it’s not really a likeness, it’s almost a 1:1 trace. I can see why she pushed back.
Oh she definitely had the right to, but I doubt I would have. .
Same
Well, Marvel didn't do it, the artist did. It was such a dead on copy of the album photo, I was surprised any pro artist would go that far. But he did. Now, would I have sued? No, but I'm a part of fan culture, I see it all differently. But did she have a right to sue? Yeah, definitely.