On the February 23, 2015 episode
of 2 Broke Girls ("2 Broke Girls and the Great Unwashed"), Caroline and
Max wait on a customer (Valerie Harper), who turns out to be a famous
photographer. Without their knowledge, she takes their photos, as well
as those of other employees at the diner, and displays them in an
exhibit in a Soho gallery. The photos sell briskly, except for
Caroline's. Caroline objects, although it seems that she's offended more
that her photo isn't selling, and than that because the photographer
didn't ask her consent, and the photographer offers her a print of the
photo to mollify her. Caroline does accept the photo, yet--still no
model release. Notice that the photographer doesn't get a model release
for any of the photos of the employees at Han's diner. Does she need
them? We don't know if she obtained a property release from Han.
The First Amendment protects a photographer's right to take photos in public spaces (nice roundup of photographers' rights here from the ACLU), and to sell artistic photographs, although what may complicate matters is that this photographer took her photographs in a diner rather than in on the street or in a public park. However, socialite Caroline obviously has a right of publicity. It's worth something here; she has been cultivating her persona since she was a teen, and she was in the spotlight during the high profile trial of her father Martin Channing, who is now in prison as a result of his conviction for running a Ponzi scheme. To the extent that the photographer's use of the photos cross the line from fine art to advertisement, how much might they infringe on Caroline's right of publicity? We don't actually that in the episode, but we could spin some hypos. Suppose the photographer creates business cards with her photo of Caroline on them? She might not; she admits that the photo isn't particularly successful because people "don't believe" Caroline as a server in a diner. The role doesn't fit Caroline's persona.
What about the photos of Max and the other employees? What are their rights of publicity worth, if anything? Suppose the photographer decides to use one of their photos as future advertising? Suppose she sells a coffee table book of her work, which includes the photos and those particular pages become part of the advertising campaign? Should a prudent publisher demand that she get model releases even if the law doesn't require them right now?
Both a prudent photographer and a prudent publisher should seek model releases, even if, as in this case, the photographer doesn't seem to be using the photos for commercial purposes. Entertainment attorney Gordon Firemark gives a short but cogent explanation of the law in this area here.
Discussion of the need for model releases in fine art photography here. Short overview of how courts balance the First Amendment and the right of publicity here. Text of N.Y. Code sec. 50 (right of privacy) here.
Fun for discussion with an entertainment law or IP class.
The First Amendment protects a photographer's right to take photos in public spaces (nice roundup of photographers' rights here from the ACLU), and to sell artistic photographs, although what may complicate matters is that this photographer took her photographs in a diner rather than in on the street or in a public park. However, socialite Caroline obviously has a right of publicity. It's worth something here; she has been cultivating her persona since she was a teen, and she was in the spotlight during the high profile trial of her father Martin Channing, who is now in prison as a result of his conviction for running a Ponzi scheme. To the extent that the photographer's use of the photos cross the line from fine art to advertisement, how much might they infringe on Caroline's right of publicity? We don't actually that in the episode, but we could spin some hypos. Suppose the photographer creates business cards with her photo of Caroline on them? She might not; she admits that the photo isn't particularly successful because people "don't believe" Caroline as a server in a diner. The role doesn't fit Caroline's persona.
What about the photos of Max and the other employees? What are their rights of publicity worth, if anything? Suppose the photographer decides to use one of their photos as future advertising? Suppose she sells a coffee table book of her work, which includes the photos and those particular pages become part of the advertising campaign? Should a prudent publisher demand that she get model releases even if the law doesn't require them right now?
Both a prudent photographer and a prudent publisher should seek model releases, even if, as in this case, the photographer doesn't seem to be using the photos for commercial purposes. Entertainment attorney Gordon Firemark gives a short but cogent explanation of the law in this area here.
Discussion of the need for model releases in fine art photography here. Short overview of how courts balance the First Amendment and the right of publicity here. Text of N.Y. Code sec. 50 (right of privacy) here.
Fun for discussion with an entertainment law or IP class.
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