Art vs. Image Rights

Since 2008, visitors to São Paulo (Brazil) have been surprised on their walks through the city by enormous photographs, black-and-white portraits of anonymous people, which appear on common structures of urban geography such as the pillars of a viaduct or the dividing wall of a building. They are part of “Giganto”, a project by photojournalist Raquel Brust. As the artist herself has stated, the goal was to take the photograph out of art galleries, to transform the landscape of her city a bit.

As a photographer, Brust is aware of the power that lies in the expressiveness of a face. Even artists whose work has passed through channels far removed from portraiture have succumbed, at some point or another in their careers, to this form of artistic expression. One notable example is Andy Warhol. In 1962, he discovered the advantages of instant photography. With his Polaroid Big Shot, he captured the symbolism behind the superficiality of a famous face. John Lennon, Mick Jagger, Alfred Hitchcock, Liza Minnelli and Marilyn Monroe were some of his subjects. The photographs of this final subject were the basis of the famous Marilyn Diptych, which kickstarted Pop Art.

Since then, countless artists and photographers have taken advantage of the opportunities the portrait provides, whether purely aesthetic (Warhol) or social (Brust). However, one must keep in mind that the image of a person has been and is protected, regardless of its artistic purpose. Perhaps because, as Susan Sontag said about the portrait in photography, “to photograph people is to violate them, by seeing them as they never see themselves, by having knowledge of them they can never have; it turns people into objects that can be symbolically possessed”.

While in our age the main attacks on image rights arise from controversial photographs published in the tabloids, this controversy initially arose not in journalism, but in the art world. Consider the astonishment that was provoked by the presentation of Canova’s Venus Victrix (1805-1808) in Rome. Nudes were common in painting and sculpture at the time, but it was scandalous that the sister of Napoleon himself volunteered to pose for one. In fact, art and image rights have always been closely connected. If we stop to think for a moment, this is logical because before the appearance of the daguerreotype and later photography, the only way for a person to immortalize their image was to turn to a painter or sculptor. Therefore at first, image was protected by intellectual property laws. Art. 8 of the German law of January 9, 1876 decreed that if the work was a portrait or a bust, the right of reproduction did not belong to the artist, but instead to the person who had commissioned the work. Another interesting example, which also indicates the path to the legal form that has given us image rights, is provided by a judgment delivered by the Tribunal of the Seine on April 11, 1855 which prohibited the public exhibition of a portrait without the consent of the person depicted.

It was well into the 20th century before the concept of the right to self image began to change in Europe, freeing itself from intellectual property and taking the form of a right of personality, and as such, was vested with the traits of inalienability, irrevocability and imprescriptibility.

However, our concept of image rights does not only draw from European doctrine. In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy” in the Harvard Law Review, an article which, for the first time, referred to the need to protect the private sphere of citizens.

This private sphere, now elevated to the status of a constitutional right (Art. 18 Spanish Constitution), is also covered by Spanish Organic Law 1/1982 of 5 May, on the protection of the right to honor, personal and family privacy, and self image. The Spanish Constitutional Court (Judgment No. 81/2001) defines the right to self image as a right of personality, derived from human dignity and aims to protect the moral dimension of people, which confers upon its owner a right to determine the graphical information generated by their personal physical characteristics that can be publicly disseminated. It essentially prevents the collection, reproduction or publication of one’s likeness by an unauthorized third party, no matter their intention (informative, commercial, scientific, cultural, etc.) by prosecuting the person who collects or disseminates it. It aims to safeguard a personal and reserved, though not intimate, sphere from the actions and knowledge of others; a sphere necessary to freely decide the development of one’s personality, and ultimately, a sphere required by our culture’s standards in order to maintain a minimum quality of life.

Consequently, the general principle that arises from the aforementioned law is the necessary provision of consent for the use of a person’s image. This consent must be express (although it can be granted verbally and can be inferred from acts or behaviors of unequivocal significance, which are not ambiguous or doubtful) and may be revoked at any time.

These same guidelines are followed by Spanish Organic Law 15/1999 of 13 December, on the Protection of Personal Data, which considers the image of a person, their physical representation, as personal data since it allows for the identification of a specific person (Art. 3) and requires the individual’s consent for the use of this data.

After taking a quick glance at both laws, we can say with a fair degree of certainty that, as a general rule, third parties cannot be photographed without their permission since Article 7.5 of Spanish Organic Law 1/1982 considers it an unlawful intrusion to capture the image of a person in places or moments of their private life or beyond. Therefore if our wish is to emulate Brust and Warhol, we must obtain the permission of the person to be depicted prior to taking the photograph. Under no circumstances should art ever be considered an excuse to violate a right of personality such as the right to self image.

However, as with all rights, this has its limits. Article 8.2a of Spanish Organic Law 1/1982 allows the collection, reproduction or publication by any means, in the case of persons in public office or a profession of renown or public influence and the image is captured during a public event or places open to the public.

Nevertheless, the law leaves little room if the intention is to take the image of anonymous people without their permission, unless it is in public and can be considered a relevant scientific, historical, or cultural interest (Art. 8.1).

You may think that if the intention is to capture spontaneous behavior, this will not be possible if the prior consent of the intended subject of the photograph is requested. Doisneau would have argued that it is not always necessary for a moment to be real in order for it to be authentic.

Following this line of thought, allow me, if you will, to briefly remember one of the most famous photographs of the 20th century: Le baiser de l’hôtel de ville, popularly known as The Kiss. It is a black-and-white photograph taken by French photographer Robert Doisneau in 1950. The popularity of the scene that it depicts and the title itself make any attempt at description redundant. The photograph was part of a commission from Life magazine, which wanted to publish a story about love in Paris in the spring and contacted Doisneau, an expert on Parisian life, for it. At this point it is no secret that the photograph was not spontaneous. Two drama students, Françoise Bornet and Jacques Carteaud, were hired to pose. The rest was in the eye of the artist.

What may surprise the reader is how the details of the taking of this photograph came to light. In 1993, Doisneau was taken to court. A couple, Jean and Denise Lavergne, claimed to have recognized themselves in the image and demanded compensation for the unauthorized use of their image. Doisneau had to present the complete series of photos taken in various parts of Paris with the student couple as evidence.

Later, Carteaud himself sued Doisneau, alleging that he had not been paid for his work: he wanted a percentage of the profits. Once again, judges ruled in favor of Doisneau, who could prove that he had paid Carteaud and Bornet for their work.

All of these events did nothing more than increase the popularity of the photograph, and consequently its value. A copy that Doisneau had given to Bornet a few days after taking it was sold at auction in 2005 for €155,000 (ten times its starting price of €15,000).

Everyone is capable of being generous by permitting the use of their image for a photograph or work of art when it has no value. It is therefore good advice for artists to always be guided by a simple but effective rule: always think as if your work will be highly valued in the future.

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