scott_slusher1

I want to thank all that have posted in reply to my question. I guess I should have made one thing clear in all of this. I

am not a professional photographer and do not make a living from this. My background is in art and therefore my

images are posted on my site as such. In the past few hours I have done some research and here's what I have come

up with:

Artistic exhibitions (and publications) are considered editorial and are protected, by the First Amendment, from the need

to have consent from a subject in order to publish a photo of him, her or "it" (like a building or other property). This

means that you can exhibit your photos of recognizable people or things in galleries, public fairs, photo contests,

magazines, newspapers, postcards, posters and coffee table books (or books of any sort, so long as it's not one that's

distributed with a product, like a camera manual). In fact, "art" in any of these forms can be printed without a release,

regardless of the medium in which it is printed, because of that First Amendment permission.

In the case of Nussenzweig v. diCorcia, Defendant Philip-Lorca diCorcia's show "HEADS" appeared at the Pace Gallery

in Chelsea (Manhattan) in September and October 2001. The exhibition featured photographs of 17 people taken without

their knowledge in New York, Tokyo, Calcutta and Mexico City. The photographs, tightly focused on their individual

subjects and printed at four-feet-by-five-feet, created uncommonly intimate likenesses. In addition to the Pace exhibition,

the photos appeared in a catalogue and numerous advertisements and reviews. This court case was also the basis for a

decision for a dispute between a top photographer and the Orthodox Jew whose picture he surreptitiously took at Times

Square, then sold 10 prints of at $20,000 to $30,000 each. As commerce, the picture would be subject to a model

release; as art, it would not. Supreme Court Justice Judith J. Gische has ruled it is art.

In another court case, Mattel, Inc. et al. v. Walking Mt. Productions, Mattel sued an artist and his company for copyright

and trademark infringement based on the artist's use of BARBIE dolls in a series of photographs depicting them in

various unflattering poses, and use of the BARBIE mark in connection with the photo series. The court found that the

photos are permitted under "fair use" professions, which precludes Paintiff's trade claims. Furthermore, the artist may

sell postcards featuring the same photos displayed in the exhibit, since an artist is permitted to sell his own artwork in

other formats. In the court's opinion, the average person would not necessarily assume that the Mattel Company was an

advocate or sponsor for the photos depicted.

Publishing photos of recognizable people in editorial books (which includes almost all books) never requires releases. It

was thought at one time that the one exception is a book cover, which was considered commercial in nature because it's

considered the part that "sells the book." But it turns out this isn't true either. This is according to the 11th Circuit court,

which ruled on July 18, 2006, "amazon.com did not violate a person's right to privacy or commerce simply because the

photo was used as the cover of the book, and that amazon.com displayed it on their website."

The exception to when "art" isn't really art brings us to the example where you have a portrait studio in a shopping mall.

That's a commercial use because you are promoting your business. Here, the photoﾗor "art" in one of its formsﾗis

being used in a commercial context because it is very specific to the nature of the business. This is quite different than

a restaurant, where artwork is not so clearly a part of the establishment's "business model." Here, it's more widely

accepted as being part of the decor. (One can argue that decisions to eat at a place aren't based on its artwork.) What's

more, it is generally accepted that eating establishments have always been venues for art. This de facto standard has

been established long ago, and courts usually uphold such traditions.

Art exhibitsﾗand indeed, the sales of photos as artworkﾗare exempt from requiring a release from subjects that happen

to be portrayed. Courts have decided repeatedly on this matter, including those situations where other potential conflicts

may be intertwined.

Posting photos on websites for the purpose of selling/licensing of images is not a form of publication that requires a

release. The courts call this a "vehicle of information," and has been established by the Illinois Appellate Court in

JAMES BROWN, THE NEW JAMES BROWN ENTERPRISES, INC., and JESUS MUHAMMAD-ALI v. ACMI POP

DIVISION. As noted above, photos on a website that are for sale is considered a "vehicle of information." So, these

photos do not require a model release so long as you are only selling the photos, not promoting a third party product or

service. Nor can you attribute (or imply) that someone (in a photo) advocates your business, an idea, or anything.

Between October 2007 and February 2008, I photographed a young lady (21 years old) in what amounted to 8 different sessions. These

images where created strictly for artistic use and have never been sold however, they are publicly posted on not only my personal website

but also on several other photo networking sites. A few months ago I received an email from the models grandmother stating that the

model (her grand daughter) was to young and immature to do such a thing (some images are nudes) and requested I remove the images

from online presence. Out of artistic integrity and that the body of work is good, I refused to remove them.

Today I received a letter in the mail for a lawyer representing the model asking that I remove the images from online sites. The letter also

claims that I have been selling the images online as well as in art galleries, which is not true. The images are online strictly to show a

portfolio of work that is consistent with my style of image making and there is no desire on my part to ever sell them.

My question is this... as the legal holder of the copyright, do I have a legal right to display those images as they are, regardless of no

model release being signed. It is my understanding that a model release protects the model from illegal use of the images. As the

copyright holder of those images I have a legal right to display them as my work.

Any insight would be helpful.