Can I paint this?

Factual Questions
1

I’ve got a series of oil paintings in mind that involve having my subjects doing things that most people would consider fairly degrading or embarrassing. (A woman sitting in public inadvertently exposing a part of her body she obviously thinks is hidden, a man alone in a room picking his nose, someone grunting his or her way through a difficult bowel movement, etc.) The artistic purpose–I don’t know if I can express it, nor if I need to–would be something like showing people in ignorant dignity. That is, the dignity of people being unembarrassed while they don’t know someone can see them doing things that they would be mortified to get caught doing. Maybe it’s sick, but I like the idea of my models being cluelessly dignified, and think it’s a nice idea for a series of portraits.

I don’t know if I need to use actual models, though, and here’s my question. Since I work from photographs generally rather than live models, whom I use sometimes when I can afford to, could I use real people’s faces? I’m fairly accomplished at getting faces to look like the people (though the subject sometimes denies looking “like that,” everyone else usually agrees I’ve caught them dead on), and I was thinking it would be amusing to use some faces of people I’ve known (and have photos of to work from) for the face?

The expression would be fine, since I have photos of people with a normal fairly dignified look on the faces (I would put such faces on to the bodies of any body models I would need to hire). The hard part is that I don’t know if this would get me into hot water. If I were to show this series in a public gallery (unlikely, given how my artistic career is progressing) or if it were to be shown in a museum (I wish) or otherwise go public, could my ex-boss, for example, reasonably claim I had ruined “his” reputation by putting a face that looked very much like his onto a body doing something undignified or even humiliating?

I’m not looking for legal advice, other than abstractly. If I were to forego the malicious pleaure it would give me to paint my former girlfriend masturbating (an act I never actually witnessed, mind you), but simply used a model for my painting “Woman Masturbating” couldn’t some stranger claimed that the painting looked like her (the stranger) pleasuring herself? My ex-boss understands that I have never been privy to his private business behind the bathroom stall door, so how would his claim that I invaded his privacy stack up to that of a total stranger who claims that my portrait “Man on Toilet” invaded his? IOW, since I have actually witnessed none of these scenes I’m painting, and doubt that anyone (other than a paid model) would claim I have, could anyone claim that I’ve invaded their privacy?

I suppose I could make this a series of self-portraits (I won’t sue myself, I’m pretty sure), but I’d like to show a variety of people caught in undigified postures displaying minimal self-consciousness. It amuses me to feature people I’ve known as my unwitting models, but not so much I’m willing to spend my life in court over this.

I understand that I could paint famous people in any posture I like, that I could save myself a lot of trouble by going the self-portrait route, that I could safely choose not to exhibit such painting in public, and that you are not my lawyer and you are specifically not giving me legal advice here.

But is this illegal, in your view, and if so, could you explain the principle that makes it so? It seems to me that if my primary goal is to display the unself-conscious way people hold their faces when they think they’re in private (or are in private) doing things they would uncomfortable doing in public, then I need to show people doing just that, without fear of being sued.

2

I don’t have an answer to your main question, but…

What are you talking about? You’re an artist!; invoking a lawsuit against yourself is exactly the kind of thing that will get you recognition.

Sue yourself and proclaim it as some kind of ironic post-modern statement about erosion of identity or the hopeless inevitability of process in the machine-society.

3

I also am an artist, and I know it’s always a bad idea (both legally and ethically) to portray a specific individual in an artwork without that person’s permission. Even I would sue you.

4

You might even win (and lose) if you have a multiple personality.

5

Earl Scheib can paint that for $99.99!

6

Well, this whole idea is unethical. It’s about “invading a person’s privacy,” even if that person does or does not exist. The theme of this series of portraits is about ethics. If I paint fictional people straining at stool, or jerking off, i expect my viewer to feel discomfort and to wonder “Christ, is this an actual person? I would feel awful if someone painted me doing that. But what if this isn’t a real person? Why would that be embarrassing? Can you invade an imaginary person’s privacy?” and on and on (if I succeed at capturing the “sitter”'s dignity in an undignified moment). I still like the idea of doing this, but I’m wondering about the purely legal objections that someone could make based on, “But that LOOKS like me, even though he never had me pose for this or anything.”

Further example, say I’ve got my ex-boss straining to produce a turd. You say I risk losing a suit (defamation? invasion of privacy? What?) because he claims resemblence? Okey-dokey, how about I put a toupee on the bald little fucker (which he’s never worn)? or deliberately paint his eyeballs blue instead of the hazel they really are? Or give him a conspicuous mole on the forehead? Does that really protect me?

Surely I can paint an ex-friend’s distinctive flowered dress, stragetically unbuttoned to reveal her distinctively colored and -textured nipple extruding, if I make her face into someone else’s face. (What, she’s going to claim that I showed her nipple without her permission? She’d have to demonstrate that her nipple was widely enough known to cause embarrassment, in which case it would by dint of being widely known NOT be a cause of embarrassment, it seems to me). So is the issue one of facial resemblence? That’s a sliding scale, where there’s a large gray area in which faces look like and don’t look like the models at the same time. (Remember, my experience, and that of many other portrait painters, is that people usually deny resemblence between their own faces and the face in the portrait.) Obviously I’m good if I paint a purely invented person, or a paid model who signs a release, and someone comes along and claims to be the person in the degrading pose, because the burden would be on him or her to prove that I knew them, and had some kind of malicious impulse towards them, etc. (Otherwise, every painting with a person in it would have to be ennobling.) But if I knew someone, would the legal burden be on me to prove (somehow) that I was just using that person’s general facial type, or would I have to show that I felt no animosity, had never even thought about the person’s whose face I was using subconsciously, etc.? That seems a bit silly to me.

Further, let’s say that I paint this embarrassing picture and keep it in the privacy of my own home. I drop dead, and my heir decides to sell it to a museum (I’m assuming I’ll be acclaimed a fine artist the second my heart stops ticking.) Would the still-living subject of the painting then have a valid legal claim against the painting’s owner, even if I’m not around to testify as to my intent or state of mind? Is any of this stuff remotely relevant, then, if I were to show the painting before I die?

7

Are there historical dead people’s faces that can be used and are not able to create a lawsuit? Abraham Lincoln, Queen Victoria, that sort of person?

8

I’m pretty sure I can paint a picture of living famous people in humiliating postures. Dead people are a no-brainer.

“I see dead people masturbating.”

9

Why do these all have to be friends & acquaintances? Take a camera out one afternoon at a gathering of some sort & do a bunch of crowd (head) shots. Unless you’re perfectly mimicing someone down to the clothing you should have plausible deniability.

I love the concept by the way, if I had any drawing ability at all (I don’t) I’d steal it and run like a bunny with it. But… this is all such a great high concept do you really even need the paintings? The idea itself is so lip smackingly delicious it should stand by itself. I will steal it! I…I feel an artsy fartsy art lecture coming on! Where’s my black T-shirt and little eyeglasses?

10

I’m a litigious SOB, that’s why not. Thanks for the feedback, though. Sometime I get ideas like this and think “Everyone else on the planet will think you’re a very strange person, but yuh gotta do what yuh gotta do.”

I don’t NEED friends and acquaintances to do the series. That would just add a little extra pleasure to it–it’s more of extra little pleasure I would get , rather than anything essential. I’m just not too crazy about paying a ruinously high price for getting that extra bit of pleasure, that’s all.

11

Yeah, we know! All those threats about suing yourself! Insanity!