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Can I use paintings of celebrities in my documentary?

by Metrov
(Santa Barbara, CA)

Copyright/Legal Question: Do I need written permission to use paintings I've done of celebrities?

I'm producing a documentary about my personal life as a fine arts painter. Since I'm also a filmmaker, the documentary could possibly be picked up for commercial distribution.

Over the years, I've done some portraits of celebrities and other people. Do I need written permission to show my own paintings of these people? Some of them are no longer living.

I also have photographs I've taken of these same people. I photographed them when they came to my studio to get their portraits done, then I did much of the painting from the photos rather than have them sit for weeks on end.

So my second question is, will I need written permission to show my own photographs of these people who modeled for me? Again, some of these people are no longer living. Others, I have no idea how to find them as the photos and paintings were done 30-40 years ago.

I'm guessing that if the documentary were only used for informational purposes, i.e. to show my work to galleries and museums, I would not need written permission? Thanks for the help!



Answer | Desktop Documentaries
By Faith

Hello Metrov,

Thanks for your question. This is a very interesting situation!

To answer your question "do I need written permission to use a celebrity image", the answer is "probably, but it depends."

Did you have any kind of agreement with your subjects as to who owned the photographs and paintings? (sounds like no)

Are these photos/paintings controversial in any way (nudes, etc)? Or are they respectful and complementary of the subjects?

If I were you, I'd try my best to track down these people and get permission. For those who are deceased, surely there are relatives or attorneys who handle their estates.

Trying to get in touch with these folks serve several important functions:

1) Gives you peace of mind that you can use the images without future problems.

2) Courtesy to the families of the deceased that their loved ones will be honored in a film.

3) Expands your network of supporters of the film who can help spread the word about your film and possibly even help you find funding!

4) If your documentary is excellent and gets interest from a distributor/broadcaster, they'll require you to have written permissions for everything in your film that you do not directly own (ie celebrity image). So worse case scenario, you would have to cut out or blur images you don't have permission to use.

Assuming your portraits are tasteful, I cannot imagine anyone not giving you permission.

I just did a little research for you and there is definitely some gray area as to whether or not you would need permission to use these images in your film. If the film was simply for educational purposes, then I'm pretty sure you'd be protected under "Fair Use Laws." But if you plan to sell your film (essentially selling their image over and over for profit), then the celebrity/their estate MAY have protection under something called "celebrity's right of publicity" and could potentially sue you.

Please understand that I am not a lawyer and this is general advice only to point you in the right direction.

To know your rights for SURE, you should contact an intellectual property law attorney. Here's a link to a discussion with several lawyers about a similar issue that may be helpful:

Avvo.com | Can I sell my own artwork depicting a celebrity?

Another resource for you is the Volunteer Lawyers for the Arts: www.vlany.org

And to learn more about Fair Use:
Summaries of Fair Use Cases | Standford University

Please check back here and give us an update! It would be helpful to other filmmakers who might be dealing with a similar issue. What do you think.. was this answer helpful? Please leave your comment/feedback below.

Comments for Can I use paintings of celebrities in my documentary?

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Mar 31, 2014
Holy Smokes
by: Metrov

Wow, thanks so much for your very helpful reply. Between your reply and the studying the links you provided, it's clear that just about every case is distinct, and the outcome (should something ever go to court) may very much depend on the mood of the judge! I will definitely try to get written permission for EVERYTHING that appears in my film. Part of my question, however, still remains unanswered: I know I need permission from the photographer to use photographs that I didn't take myself (even if I own a print of the photo). But what if I want to use a photograph of myself (taken by another photographer), and there is another, non-celebrity person in the photo with me. Do I need to get permission from that other person to show the photo in my film? For example, I have numerous old family photos of me with my siblings. Would a distribution company require that I have written permission from each one of my siblings before I can use my own family photo? Thanks again for your help. Your site is awesome!

Apr 06, 2014
make the best film you can
by: Desktop Documentaries

Here's my unofficial answer. (Again, I am not a lawyer!) Make the best damn film you can, use the images that help you best tell the story and then show it to a lawyer when you're done. Worst case, you may need to blur out a face or swap out a photo. As long as you're not slandering anyone or putting them in a negative light, this may be a situation where it's best to ask for forgiveness, not permission.

Only you know your relationship with everyone involved and whether someone has the potential to get really upset with you for using their photo/image. If you have any inkling of a problem, either don't use the photo (unless it's THAT important to the story) or do your best to get permission. Once you've made your documentary to the best of your ability and have your first cut, start showing it around to get feedback. Anyone you've included in the film should get a chance to watch it. Gauge reaction.

For my documentary "Briars in the Cotton Patch", I had tons of photos with hundreds of people. There was absolutely no way I could get everyone's permission. And PBS (my broadcaster) and my distributor (Vision Video) did not ask for permissions. It's my understanding you only need written permissions from the "main characters" of your story. And anyway, PBS bought E&O insurance for the broadcast of my film which covered any potential legal issues.

Oh yeah, and you should create an LLC for your documentary so that if anyone decides to sue you, they are suing the film and not you personally.

Faith

Apr 06, 2014
production insurance
by: Desktop Documentaries

To learn more about E&O insurance and other types of insurance you may need for your documentary, click here:

Film Production Insurance

Apr 06, 2014
Again, Very Helpful
by: Metrov

As before, your response is very enlightening and helpful. Because this is my first doc, a lot of these issues can be cause for hesitation and concern... and as any filmmaker knows, we need all the energy and confidence we can muster to persevere and get the job done. Again, thank you very much for sharing what you've learned!

Sep 17, 2014
Good Luck!
by: Desktop Documentaries (Faith)

You're very welcome Metrov. Please do check back here and let us know how things end up with your documentary. Good luck!

Jul 07, 2015
Warning worth note!
by: Anonymous

If they are paintings from 3rd party photos or some kind of reference you may want to read this post and watch this video of an individual who was sued for creating an original work based off a photo.

http://waxy.org/2011/06/kind_of_screwed/

https://www.youtube.com/watch?v=9tmT80kW9Co

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