First Amendment & Nude Hockey Paintings

[jawapunk]

http://en.wikipedia.org/wiki/Screw_magazine

In 1982, Goldstein was sued by Pillsbury after their “doughboy” logotype was spoofed in Screw. Goldstein won that case and the right to parody corporate logos is now firmly entrenched as protected speech.

Looks like people can use corporate logos and sell the artwork. Although I agree with American Woman as well, the selling has to be in the right circumstances so her original statement that people can't just paint anything they want for profit holds up. They would have to prove fair use.

[bush_cheney2004]

http://en.wikipedia.org/wiki/Screw_magazine

Looks like people can use corporate logos and sell the artwork. Although I agree with American Woman as well, the selling has to be in the right circumstances so her original statement that people can't just paint anything they want for profit holds up. They would have to prove fair use.

People can still paint anything they damn well please, including a nude Mother Theresa.

[Guest American Woman]

Indeed.....political cartoonists can draw such content and "sell" it as well to syndicated newspapers. Anyone who has ever seen a copy of Al Goldstein's "Screw" magazine would know this. Gee, I thought these "liberals" knew their stuff.

Let's review. It's been accepted that one can use an image "under the right conditions." Now you are bringing up "political cartoonists," which would fall under the catagory of "under the right conditions." I repeat. Yet again. "Seems to me a person should have same rights over their own face as a company has over a character." Because the painting of Bobby Orr wasn't "under the right conditions." It wasn't a "political cartoon." There are no limiting conditions on painting someone's image. I will also repeat-- "And it seems to me you can't refute that."

As often as you repeat this...

People can still paint anything they damn well please, including a nude Mother Theresa.

... the fact is, people cannot "paint anything they damn well please" for profit, which is the issue here.

I would say "gee, I thought you knew your stuff," but my ethics prevent me from lying.

[Liam]

It's not a 1st Amendment issue -- the 1st Amendment restricts government's ability to limit speech, it has nothing to do with private parties' and their right to speak, create works of art or make likenesses of other things (real or imagined).

In terms of the paintings, themselves, it's not like Bobby Orr actually posed for the painting and this guy is selling it without Orr's permission. And it's not like the guy snuck a camera into the locker room at the Boston Garden and snapped some clandestine photos of his hero.

The fact that the subjects of these paintings are nude is no different than if he painted Bobby Orr in action in his Bruin's uniform, or if he painted Bobby Orr wearing a suit of armor or dressed as Tarzan. In each case (well, maybe not the Bruins uniform), the scene is entirely the creation of the artist's creative mind and not meant to portray reality. I see little basis for suing the artist on the basis of embarrassing Orr since it is known that the artist has never seen him naked. I could, however, see a suit against the artist for appropriating Orr's likeness (similar to how Bette Midler sued Ford for using a sound-alike singing one of her songs in an ad for the Ford Taurus years ago).

[bush_cheney2004]

As often as you repeat this...

... the fact is, people cannot "paint anything they damn well please" for profit, which is the issue here.

I would say "gee, I thought you knew your stuff," but my ethics prevent me from lying.

Repeated..because your conditions do not hold up. People can paint anything they damn well please, and sell it...for profit..to a willing buyer.

[M.Dancer]

Repeated..because your conditions do not hold up. People can paint anything they damn well please, and sell it...for profit..to a willing buyer.

Correct. As long as the context is art it doesn't matter. Make an image of Bobby Orr and use it in an advertisiment and that is another story.....

[Guest American Woman]

Repeated..because your conditions do not hold up. People can paint anything they damn well please, and sell it...for profit..to a willing buyer.

So you think people could paint a real live adult movie star having sex with a real live child star and sell it and it would be ok?

[Sulaco]

So you think people could paint a real live adult movie star having sex with a real live child star and sell it and it would be ok?

Well - we are talking about one's civil right to one's own image - and in general various issues surrounding copyright and such. Not criminal liability based on child pornography laws.

Edited December 7, 2007 by Sulaco

[bush_cheney2004]

So you think people could paint a real live adult movie star having sex with a real live child star and sell it and it would be ok?

Hard to define "real live" likeness to anyone living, and the US 9th Circuit Court ruled on "synthetic" child pornography a while back.

Molloy equated virtual child pornography to an evil idea and determined that the criminalization of an evil idea cannot satisfy the constitutional requirement of the First Amendment. The possible secondary effects of this form of speech were not a compelling enough government interest to "justify the criminal proscription when no actual children are involved in the illicit images either by production or depiction."

http://www.ndaa-apri.org/publications/news...no_12_1999.html

Whether I think it would be "ok" or not is irrelevant. The government needs a compelling state interest in restricting such speech; any offended/depicted individual can litigate in civil court.

[guyser]

Hard to define "real live" likeness to anyone living, and the US 9th Circuit Court ruled on "synthetic" child pornography a while back.

Molloy equated virtual child pornography to an evil idea and determined that the criminalization of an evil idea cannot satisfy the constitutional requirement of the First Amendment. The possible secondary effects of this form of speech were not a compelling enough government interest to "justify the criminal proscription when no actual children are involved in the illicit images either by production or depiction."

http://www.ndaa-apri.org/publications/news...no_12_1999.html

Whether I think it would be "ok" or not is irrelevant. The government needs a compelling state interest in restricting such speech; any offended/depicted individual can litigate in civil court.

Was this before or after Robert Mapplethorpe? He was charged, not sure if convicted, with child porn for his photos many years ago. I recall they were deemed artistic impressions, albeit actual photos of naked children, but not in any sexual way.

[bush_cheney2004]

Was this before or after Robert Mapplethorpe? He was charged, not sure if convicted, with child porn for his photos many years ago. I recall they were deemed artistic impressions, albeit actual photos of naked children, but not in any sexual way.

Mapplethorpe died in 1989, but the biggest controversy over his work followed later. Can't convict a dead man.

[Guest American Woman]

Well - we are talking about one's civil right to one's own image - and in general various issues surrounding copyright and such. Not criminal liability based on child pornography laws.

We're talking about the claim that "People can paint anything they damn well please, and sell it...for profit..to a willing buyer" and the response of "Correct. As long as the context is art it doesn't matter." Fact is, as I already said, people can't paint whatever the hell they want and sell it....."

And seems to me if child pornography laws apply to art so should others. In other words, if you can't sell a nude pic of someone without their permission (and I'm not talking tabloid topless pics taken in public), then they shouldn't be able to sell 'art' of someone nude without their permission.

[bush_cheney2004]

..And seems to me if child pornography laws apply to art so should others. In other words, if you can't sell a nude pic of someone without their permission (and I'm not talking tabloid topless pics taken in public), then they shouldn't be able to sell 'art' of someone nude without their permission.

But you aren't the law...and people can still paint whatever they damn well please with impunity. And that includes art of "someone". Photos are completely different from artistic renderings.

[Guest American Woman]

But you aren't the law...and people can still paint whatever they damn well please with impunity.

No, they can't. Fyi, your link has old information (Emphasis mine):

.....on April 30, 2003, President George W. Bush signed into law the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act 2003).

....the decision left in tact the law prohibiting "visual depiction [that] ha[ve] been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

"[C]hild pornography" means any visual depiction, including any photograph, film, video, picture, or computer, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where…such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct[.]

Link

[M.Dancer]

People can still paint anything they damn well please, including a nude Mother Theresa.

I could paint a nude Mothewr Theresa....the question though, would be why?

[M.Dancer]

So you think people could paint a real live adult movie star having sex with a real live child star and sell it and it would be ok?

Apple and oranges. Images which are already illegal don't count. You could easily omit the adult star and make the child anonymous and it could still be illegal.

[August1991]

So you think people could paint a real live adult movie star having sex with a real live child star and sell it and it would be ok?

It wouldn't be OK in the US.

New York v. Ferber:

This 1982 case upheld the constitutionality of a state statute that prohibited anyone from knowingly producing, promoting, directing, exhibiting, or selling any material showing a “sexual performance” by a child under the age of 16. It defined sexual performance as any performance that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” The case also established that child pornography doesn’t have to meet all of the requirements of the Miller test.

What does this mean?

As with obscenity, child pornography enjoys no First Amendment protection and the government can restrict its availability to everyone. In the case of electronic or computer transmission, it’s a federal offense to knowingly receive child pornography.

Link

As they often say, the First Amendment doesn't mean you are free to yell "Fire!" in a crowded theatre.

[bush_cheney2004]

No, they can't. Fyi, your link has old information (Emphasis mine):

That's what the old law thought too...until tested in court. And that is why your position would lose. The image could be rendered inside or outside the USA, and sold to a willing buyer.

Edited December 7, 2007 by bush_cheney2004

[Guest American Woman]

That's what the old law thought too...until tested in court. And that is why your position would lose. The image could be rendered inside or outside the USA, and sold to a willing buyer.

So provide a link to a case that proves your claim.

[jawapunk]

Why are we getting into child pornography? It is illegal to sell anything with child pornography. I actually listened to the artist on The Q (CBC radio). He makes a compelling argument and given the fact that he bases his paintings on publicity shots of Orr means Orr can have no expectation that his image is not distributed for money. He is in the public domain is what I am getting at.

Perhaps a person can paint "anything they damn please" and sell it, but then the person whose image is being sold has every right to sue the hell out of them and take all their profits plus more.

Edited December 7, 2007 by jawapunk

[Guest American Woman]

I just happened upon the page in Jon Stewart's "America the Book" of the 'nude' Supreme Court Justices. I have to say, I'm suprised he was able to get away with that. I guess being a 'public figure' means people can get away with just about anything (a fact some on this board seem to be proud of). Out of curiousity, I did a search and found that some weren't amused by it.

Mississippi libraries ban Jon Stewart's 'America'

Wal-Mart bans Jon Stewart book from stores

Edited to add:

I see the ban was lifted:

Update 11 Jan: The ban has been lifted thanks to the local, nationwide and even worldwide attention.”It was a difficult decision to withhold the book from circulation (initially), but we felt there was so much public interest in it (recently) that the community might be better served if we made the book available,” said library board chairman David Ables.

Link

Edited December 22, 2007 by American Woman