Writing in the Boston Phoenix, Harvey Silverglate says Kurt Kauper's (imagined) nude paintings of Boston Bruin hockey heroes (mentioned earlier here) reminded him "of the convoluted mish-mash that First Amendment law has become." He argues that the legal picture "isn't as simple" as Geoff Edgers's Boston Globe article made it seem, for several reasons. First, he thinks the subject of this sort of work could have a defamation claim to the extent the painting suggests he actually consented to, and sat for, the painting (I guess the defamatory statement expressed would be: "Bobby Orr is the kind of person who would pose naked for a painting"). Next, he wonders what would happen "if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?" (It's worth noting in this regard that the image at issue in Nussenzweig v. DiCorcia, discussed recently here, and mentioned by Silverglate in the article, was included in the catalogue for the exhibition it was a part of.) And last, he notes that, while the use may well be protected under New York, or Massachusetts, law, "some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness" (i.e., so-called "rights of publicity").
The end result, he argues, is that "the occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications."
With qualifications, I think that conclusion's about right. Sort of. As a general matter.
