Actually, permission does have to be given to use a person's likeness in America, depending on the circumstances. A person's likeness is protected depending on whether or not the picture was taken in a public place and not very personal OR if permission was given, and even then that can be overruled.

If I were to take an ordinary person's picture while they were in a supermarket parking lot for instance, I could possibly use that image without their consent since they're out in the open and the picture is not particularly unflattering or personal. But because I have not asked for permission, if I used that image and the person wasn't happy they might be able to make me remove it even though it wasn't all that unflattering (they might not suceed, though). But if that picture was say... of a woman exiting her car in a very revealing manner, she could easily stop me from using the image.

Another stipulation in using a person's likeness without their consent is taking their picture in a public space. That's how paparazzi make their money, because they take pictures in public (obviously their pictures are very personal and breaking one of the rules, but the feeling that celebrities ask for this generally overrules that. Paparazzi couldn't do that to ordinary people). So, if a picture of a person was taken of them in their home and permission was not given, that picture could not be used. But, to make matters tricky, the definition of a public place is up to debate. Photographers can't go onto a college campus and start snapping pictures without permission from the school (students are required to sign permission slips that let their image be used by the school, so they aren't asked). So, in actuality, Mineko Iwasaki does have rights to her image, as does the photographer. If Lucky Brand didn't ask her AND the photographer, then they were breaking copyright law. If you want to know about International Copyright Regulations, then this site is very informative.

And very well put might i add Fuyouhime.

Well, yes and no, Fuyohime. I'll see if I can find the article for you, but essentially a photograph or exact COPY of a person's image is protected, but their likeness (ie. a drawing) is not under very specific circumstances. Since the photo of Mineko is heavily altered and essentially reduced to black and white shadows, it would more likely fall under the category of a "likeness". Also, if one of LuckyBrand's people actually took the photo, or the photographer sold them the photo, then it's a moot point. Do you know where the original photo came from? I am curious. And I will dig around and find that article, it was Richard v. something or other (or something like that), concerned an unauthorized painting of Tiger Woods...

edit: okay, here are a couple articles on it, one discussing the case and another discussing it's final outcome:
http://www.detritus.net/contact/rumori/200211/0122.html
http://law.marquette.edu/cgi-bin/site.p ... ageID=1161

I'm not saying that she couldn't necessarily file a lawsuit, anyone can file about anything, but given the findings in this courtcase ^ the courts may rule that it doesn't impact her negatively etc., and let LB off the hook. I'm playing devil's advocate, I know. I'm a professional artist, so I can understand the intense desire to protect one's work (or even one's public image) but I know about the other side of the coin too. It's not a black-and-white clear-cut world, even with all the copyright laws in existence.

The photo predates Lucky Brand by a couple decades, so I would doubt they own it. They might have persmission, which I never stated they didn't have. Also, most states forbid the usage of even a likeness without permission when the usage of such a likeness is for comercial/exploitative use. To use a likeness of another person for commercial gain without permission can easily violate the person's right of publicity, provided that the image is obviously still recognizable as that of the person. There was a recent case involving Virgin Mobile about this, in which they took a woman's image off of Flickr to use in one of their texting ads and the girl in question sued for misappropriation of her likeness and violation of her right of publicity. This site talks about that case and gives an overview of the laws behind the usage of another's likeness. It also gives links to other older examples of suits over the usage of a likeness.

Edit-
The case concerning Rush vs. Woods argues whether there was any damage done to Wood's image via the usage of his image without concent. Many people argue that Rush was honoring Woods, and that is why finding a solution to the matter is so tricky. No one would really say that the Lucky Brand was honoring Mineko Iwasaki's image. They weren't putting it on $700 serigraphs, they photoshopped it and placed it on a cheap T-shirt. Also, Woods clearly benifits publicly by having his image spread about in such a way, but Mineko Iwasaki doesn't benefit at all. In the first place, this doesn't heighten her image in the public at all, so she receives no indirect-benefit the way Woods does. Her form of fame also doesn't rely on her ability to stay in the public eye, and one could argue that forcing her into the public is damaging to her reputation. So, I don't think the Rush vs. Woods suit is a valid analogy. Mineko isn't much of a celebrity in the US, so it would make more sense to treat her hypothetical case as that of an ordinary person' image being used commericially without their concent.

You make a good point, as always, but she doesn't have a reputation in the US (other than those few who know of her), so is it really damaging? I had never even heard of her before this discussion, as would be the case with most people purchasing that particular item as it is primarily intended for the American market. I certainly don't think any less of her having seen it, she's obviously very lovely and cultured. I'm also no less likely to seek out her services, if I were in a position to be around her to begin with. This is of course, my opinion and my reaction.

It might be that you are correct, and that she would not be viewed as a celebrity here and would fall under that scope of protection. I don't know. We've gotten into the realm of legal interpretation, which is not at all my area of expertise. These kinds of things are usually decided on a case-by-case basis; the Virgin Mobile case is a good example in your favor.

Edit - I think at this point I'm going to bow out. I'm not much of a debater, and I see we've gotten to that point. I just like to point things out from the other side. Fuyuhime, as always your extensive knowledge is impressive. I may not agree with everything, but I do respect your opinion. It's been very educational, thank you.

Well, since this is all hypothetical, neither of us is right or wrong. More than likely Lucky Brand got permission or Mineko Iwasaki either doesn't know/doesn't care. Guess we'd never know what the solution was unless it actually went to court. Debating it has been a fun game, thank you for participating with me .

I hope this is not going off topic, but I was trawling eBay one day using the search-word 'geisha' and suddenly spotted an image I knew. It was an image of my own geisha painting, which can be seen elswhere on this board. The auction was for a cross-stitch kit. I sent an eBay message to the seller, who had lots of similar kits listed, saying that I wondered if she realised that the painter was ---, and could be seen on the website ---, and that the painter owned the copyright so should at least be credited with the work. I quickly had a sarcastic reply: 'Well spotted. Give yourself a pat on the back.' I was just typing a stiff reply when I had another email apologising. She'd investigated my eBay username and saw the location was the same as the artist so guessed it was actually me she'd been sarcastic to. She took the kits off straight away, but who knows, she might still be selling them on a market stall somewhere I'd never see them... She'd had the kits made up, so would want her investment back.

Do you talk to Mineko???

She could still be selling them, it's hard to tell. If she hadn't been willing to take them off of ebay when she thought you weren't the artist, then clearly she's of the opinion that she isn't doing anything wrong. I think the only way you can inquire about this is to report her to ebay and try to work with them to do an investigation.

Thank you Fuyouhime. I will do that. It just shows that people do think they can get away with things like this. Somehow they think they won't get noticed. Of course, I'm not as famous as Mineko san...

Sorry to hear that happened to you, KC (may i call you that?). I do my own art prints, so i can understand your feelings.

Hi Samara san, thank you. (And KC is fine). The thing that really got me was that I was considering marketing kits of that picture myself, so it was a shock to find someone already doing it!

KC - ouch! That smarts.