Better than Chocolate?.............James Stewart Original Art!

Someone is going to get an awesome Easter present!

Thanks for the kind words. Does anyone have an email for James they could PM me? I always like the riders to have the original artwork, like the Ryan Villopoto painting from 2007 Motocross of Nations at Budds Creek.

Checkout www.robkinsey.com or Rob Kinsey Art Facebook page or my blog www.robkinseyart.wordpress.com

Thanks for your kind words and yes I am trying out some more impressionistic styles, looser to capture the movement in our sport.
Stay tuned, will post some examples when happy.

Katoomey,
What is your angle or interest when making these comments, saying I need to obtain a rider's permission to paint them?

The late Steve Bruhn (TFS) was a good friend of mine and I obtained his permission to use his photograph to create this painting. James saw the painting in the Fox hospitality at 2007 MXDN at Budds Creek and liked my work, although it was interesting that one of his posse expected me to give the painting as a gift to James.

99% of my work is now commissioned by companies such as Honda, Youthstream, KTM, RacerX, Tom White's Museum and many private collectors, however I did look into your comments and found the following:

Legalities 7: Issues Regarding the Use of Someone’s Likeness

Q. A few months ago my husband and I attended an art opening at a local gallery. While visiting the same gallery recently I was surprised to see a large painting depicting a man who looked exactly like my husband. When I questioned the gallery owner he explained that an artist had been taking snapshots of people at the gallery opening we attended, had taken one of my husband and made a painting from the snapshot. The painting is not particularly flattering and I am wondering if the painter has the legal right to do this. Doesn’t my husband own his own image?

A. The short answer is no. Individuals do not have an absolute ownership right in their names or likenesses. But the law does give individuals certain rights of “privacy” and “publicity” which provide limited rights to control how your name, likeness, or other identifying information is used under certain circumstances. These laws vary from state to state, so they are difficult to summarize. For these purposes, I will discuss the relevant California laws as they apply to the use of names and likenesses by artists.

Your right of privacy or publicity is violated when your name, voice, signature, photograph or likeness (for simplicity, I will refer to all of these as “likeness” below) appears in a work of art and (a) you can be clearly recognized as the subject shown in the work, (2) you have not consented to the use, and (3) the circumstances fit one of the following criteria:

(1) Invasion of privacy by intrusion into private affairs

This right is violated when someone discloses private or sensitive matters about a private person. It covers matters that occur in private places, and also in semi-private settings where the individual had a reasonable expectation that she was seen only by a limited group of people. For example, this right is violated when a news reporter secretly videotapes a conversation with an employee at her place of work, even though her fellow employees witnessed the conversation.

In your example, the gallery might be considered such a semi-private setting. However, your husband’s mere physical appearance at the opening would not qualify as a “private” or “sensitive” matter. So the act of taking his photograph, and/or disclosing what he looks like in the subsequent painting, would not violate the intrusion right of privacy. If he had been documented doing something of a sensitive nature, such as embracing another woman, that would be a different story.

(2) Invasion of privacy by trespass or constructive trespass

This right is violated when someone trespasses on your private property intending to capture a visual image, sound recording, or other physical impression of you engaging in a “personal and familial activity,” or when he uses a device, such as a telephoto lens or audio-enhancing device, that enable him to obtain the same results as would otherwise require trespass. Insurance and criminal investigators are exempt.

This doesn’t apply to your example as no such trespass was necessary to take your husband’s photo in the gallery, and moreover, he wasn’t engaged in a personal or familial activity. Conceivably, artists might violate this right if they used these methods to get images of a person that was later used in a painting, but the scenario seems unlikely.

(3) Invasion of privacy by public disclosure of embarrassing private facts

This right is violated only when the disclosure is not of legitimate concern to the public. The courts are quite liberal in interpreting “legitimate concern to the public,” so it is difficult to prevail on a claim that this right has been violated. Artists might violate this right if they depict a person nude, or in the course of doing something offensive. However, if the nudity or offensive conduct occurred in public, that fact itself might be construed as matter of legitimate concern to the public.
In your example, there were no embarrassing private facts disclosed. Your husband’s appearance cannot be a “private” fact because by definition, it is how he appears in public.

(4) Invasion of privacy by false light disclosure

This right is violated when your likeness is used to suggest something false and derogatory or defamatory about you. For example, suppose an individual’s photograph is used to illustrate an article about drug dealing. If that individual is not a drug dealer, the article has created a false insinuation about his character.

In your example, I am assuming there is no such false insinuation. While the portrait is not flattering, that your husband doesn’t like the depiction is not sufficient to support a complaint that his reputation or character has been damaged. If, however, the artist had portrayed your husband doing something offensive and false, such as robbing a bank or fondling a child, that would be a different story.

(5) Invasion of privacy by commercial appropriation / rights of publicity

These rights are violated when a person’s likeness is used on or in connection with products or merchandise (“goods”), or to sell or advertise goods or services.
With respect to artwork, the courts have generally considered works of fine art to be expressions of the First Amendment rights of free speech, and thus immune from liability for violation of privacy or publicity rights. Only commercial reproductions of the artwork qualify as goods under this standard. Thus, the original painting of your husband would not be a violation of his rights of privacy or publicity. However, if the artist subsequently reproduces the painting on t-shirts, postcards, etc., those items would be considered “commercial” goods, and that would violate your husband’s rights of privacy and publicity under this standard.

The grey area would be reproduction of the painting as a limited edition of fine art prints. Most courts consider such prints to be free speech just like the original artwork and thus, still immune from rights of privacy or publicity. For example, in New York an edition of 5,000 prints of a painting depicting Tiger Woods was held immune as an artistic expression of free speech. However, in California, the standard is more subjective. In a recent case concerning a portrait of the Three Stooges, the California Supreme Court held that artwork is immune only if it is “transformative.”

Unfortunately, the meaning of “transformative” is elusive. The court said that an artwork is transformative if it is perceived as “primarily the artist’s own expression rather than the subject’s likeness.” This could mean that the style of the rendering is what matters: if a painting is a caricature, it is probably transformative. If it’s a conventional realistic portrait, it’s not transformative. However, it could also mean that the artwork’s appeal to the consumer is what matters: if they want to buy it because of the wonderful artistic technique, it is transformative. If they want to buy it because they want a picture of that person, it is not transformative. Most consumers don’t know him, so they would want to buy the painting of your husband for its artistic quality, not because it depicts him. If it has artistic qualities beyond a conventional realistic portrait, that would further support the argument that it is transformative; for example, if stylized distortion or harsh colors contribute to the unflattering depiction. See Legalities 3 for more on the rights of publicity.

© 2017 Owen, Wickersham & Erickson, P.C.

Thanks KennyT

That's awesome Dev, love the way it has been framed. Steve was such a great guy, miss his smiling face and humour in the press room at MXDN. Have a good photo of him from Lommel MXDN I must dig out.
Thanks for sharing........

Yes,
In the summer of 2007 when I was building up a body of work to exhibit at the 2007 MXDN at Budds Creek Maryland, USA.

Thanks everyone for the kind words. Received several bids above reserve price but highest bidder hasn't come through with funds as promised, so I'm extending this offer through Seattle SX weekend, which is apt as the original painting depicts James winning the Supercross title in Seattle.

Email your bids to robakinsey@hotmail.com or PM me here on Vital. Best wishes to everyone going to Seattle SX and good luck to all riders.

Seattle's finest Ryan Villopoto with my original from Budds Creek MXDN 2007

Check out prints at www.robkinsey.com