Seurat’s Poseuses: A Model Right to Privacy
Familiar to yet misunderstood by many artists, the model release form protects the artist against liability stemming from the model’s rights of privacy and publicity. The right of publicity grants the individual the ability to control the commercial use of her name, image, and likeness while the right to privacy concerns the ability to choose which parts of the self are disclosed to the public and the manner of such disclosure. The general purpose of both rights is to preserve human dignity and autonomy. While the right of publicity is a more recent development, legal scholars first recognized a right to privacy in the late nineteenth-century, with photography and the press eroding the barriers between private and public. Around the same time, the Neo-Impressionist painter Georges Seurat attempted to illuminate these same social changes with innovative artistic techniques.
One painting in particular, Poseuses (Models), reveals a modern approach to an old profession: the artist’s model. Supposedly “auditioning” before the artist for work, three nude women in various stages of undress stand or sit before Seurat’s A Sunday on La Grande Jatte. Highlighting the fluidity between private and public, Poseuses portrays a typically private commercial exchange between artist and model. The painting provides the viewer with the inharmonious illustration of a profession that centers around the public distribution of one’s likeness while simultaneously and almost uncomfortably encountering the intimate and perhaps indecent nature of this profession. The law attempts to provide some equilibrium and fairness in such contexts. This tension between public and private with Seurat’s depiction of models in Poseuses parallels the policies supporting the contemporary development of the rights of publicity and privacy.
Seurat, Poseuses, & the Artist’s Model
French painter Georges Seurat (1859-1891) founded the Neo-Impressionist movement with his signature style of pointillism. With juxtapositions of individual touches of pure color, a vibrancy emanates from Seurat’s paintings. Seurat and the other Neo-Impressionist artists sought to revolutionize painting by relying upon scientific principles relating to color to replicate the “luminosity of nature” on canvas. (Block 2003). Extending this avant-garde approach to composition, the Neo-Impressionist artists were also able to illustrate the radicalism and social revolutions occurring around them. (Block 2003).
Seurat’s Poseuses (1886-1888) is certainly a product of the Neo-Impressionist movement. A large canvas (78 ¾ x 98 3/8 in.), the painting shows models disrobing, posing, and dressing in the artist’s studio. The model on the left sits partially disrobed with her back to the viewer. The model in the center stands before the viewer, clasping her hands. The third model is sitting and putting on her stockings. At the left on the studio wall hangs the artist’s A Sunday on La Grande Jatte. Every fashion accessory arranged at the bottom of Poseuses echoes that worn by the women in La Grande Jatte “as if to give the impression that these women had descended from the canvas and undressed.” (Cachin 1991, 278).
The scale of Poseuses resembles that of a history painting, which traditionally dealt with more elevated themes than an artist’s studio. (Dolkart 2012, 78). Similarly, the formation of the models recalls Raphael’s Three Graces or other mythological paintings. (Cachin 1991, 273). While these nude models may allude to a classical form, Seurat bucked tradition by using a new technique, pointillism, to depict these nudes standing next to a painting that celebrates modern life. (Nochlin 1989, 149). By departing from the more customary depiction of the nude, Seurat instead meant for “his nudes to be seen [as] contemporary urban working women.” (Nochlin 1994, 73). These women, more like blasé posers than glamorous idols, represent the practical aspects of the artistic process. (Nochlin 1994, 73-74). The painting demonstrates the “process and artifice of picture-making” by portraying the commercial exchange involved with models securing (or having secured) work with the artist. (Dolkart 2012, 78).
Rights of Publicity & Privacy
Artists use model releases to obtain permission from an individual to use his or her name, voice, or visual likeness. If an artist uses another person’s name or likeness without prior consent, then the artist may be liable, under the legal standards of the rights of publicity and privacy, for damages sustained by the person injured as the result of that use.
Right to Privacy
Two years after the completion of Poseuses, Samuel Warren and Louis Brandeis first identified the right to privacy as a distinct right, “the right to be left alone,” in an 1890 Harvard Law Review article. The article began by acknowledging that the fundamental principle of granting the individual full protection in person and property has evolved over time. (Warren and Brandeis 1890, 194). However, recent developments with photography and the press have infiltrated, according to the authors, the “sacred precincts of private and domestic life”. (Warren and Brandeis 1890, 195). Concurrently, a “prurient taste [for] details of sexual relations” has led to an appeal for a right to privacy, which the law at that time could not sufficiently protect. (Warren and Brandeis 1890, 196).
The authors argued that “[t]he common law has always recognized a man’s house as his castle, impregnable…. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?” (Warren and Brandeis 1890, 220). For the authors, the recent social, political, and economic changes demanded the recognition of new rights to protect not only physical property, but also intangible property related to the self. The resulting right to privacy, also known as the right to be left alone, recognizes the right to be free from intrusion upon one’s solitude or seclusion and the right to control the dissemination of information about oneself. The publication of personal information that would be offensive and objectional to a reasonable person of ordinary sensibilities violates the right of privacy. (McCarthy § 5:89).
Right of Publicity
In addition to the right to privacy, every person also possesses the inherent right to control the commercial use of her identity: the right of publicity. (McCarthy § 1.3). First recognized by the courts in 1953, the right of publicity is an economic right to profit from the commercial use of one’s name or likeness and to prevent others from misappropriating this economic value. (Haelan Lab., 202 F.2d at 868). While the scope and available remedies of the right vary among different state laws, the plaintiff asserting her right of publicity generally must show that the defendant used without permission an aspect of her identity and such use is likely to cause damage to the commercial value of her identity. (McCarthy § 3.2).
The First Amendment, specifically the right of free speech, sets certain limitations for the rights of publicity and privacy. Speech in this context does not mean words alone but also includes visual art. Generally, noncommercial speech receives greater protection under the First Amendment than commercial speech. (Central Hudson, 447 U.S. at 557). However, as one judge has written “[i]n our pop culture, where salesmanship must be entertaining and entertainment must sell, the line between the commercial and noncommercial has not merely blurred; it has disappeared.” (White, 989 F.2d at 1520).
The courts have developed various tests to balance the competing interests and to distinguish between protected speech and the right of publicity. For example, under the Saderup standard, if the work contains significant creative elements that the viewer would primarily perceive the work as the artist’s own expression rather than the subject’s likeness, then the First Amendment protects the artist against any liability for violating the right of publicity. (Gary Saderup, 21 P.3d at 809-10.)
Posing, Privacy, & Publicity
While the basic principles behind the right of publicity and privacy seem obvious and timeless, the legal mechanisms that articulate and enforce these rights are relatively recent. The social changes that prompted legal scholars to develop the law in this manner are the same that influenced Seurat’s work and his revolutionary attitude towards painting and the female nude.
A Viewer’s Intrusion into Private Affairs
Seurat’s placement, formation, and styling of the models in Poseuses to illustrate the commercial exchange between artist and model place a rather intimate scene of the artist’s studio in the public eye. Viewers are not normally privy to such exchanges, and even the somewhat aggressive stance of the middle model reminds the viewer of his or her own unseemly presence. The painting’s somewhat uncomfortable infiltration into the “sacred precincts of private…life” echoes the need for the “right to be left alone,” for which Warren and Brandeis advocated in their 1890 article. (Warren and Brandeis 1890, 195).
The modern right to privacy under various state laws seeks to protect against the intrusion into a person’s private affairs that is highly offensive to a reasonable person. (Restatement § 652B). As identified by Warren and Brandeis, a growing interest in voyeurism encourages such an offensive intrusion. Seurat subverted the traditional depictions of models by having the center model return the spectators’ gaze, feeding this sense of voyeurism. (Borzello 1982, 164). Seurat’s painting does not grant the models any means to avoid the viewer’s eye. One fashion accessory depicted in the painting, the fan, was normally used as a means to provide privacy. But none of the models are holding a fan, rendering them susceptible to the gaze of the viewer.
While Brandeis and Warren identified the need for legal redress to protect people from this “highly offensive” intrusion, it is not clear whether Seurat found this particular intrusion to be as offensive. Seurat’s technique provided an opportunity for a rather deliberate reveal of a private scene. Moreover, his artistic approach in shrinking the distance between spectators and painted figures seems to contribute to rather than alleviate this social and legal need for privacy. (Eisenman 1989, 215).
Private Facts: What’s in a name?
Seurat’s Poseuses also illustrates the need for a right to privacy to deter or remedy the publication of private details of a person’s life that would offend a reasonable person. The private details in this case remarkably center around the profession of the women in the painting. Late nineteenth-century Parisian society ostracized working class women, especially models, associating them with moral deterioration. (Lathers 2001, 26-27). Society may have respected the painting of the nude but disparaged the unclothed woman who modeled for it. (Borzello 1982, 73). Models were discriminated against and accused of being sexually promiscuous. (Lathers 2001, 26-27). The identification of a woman as a model, such as the models in Poseuses, would likely “offend a reasonable person.”
Seurat both exacerbates and attempts to ameliorate the injury resulting from the painting’s publication of private, offensive facts. With the title of the painting itself, Seurat emphasized the low class of these particular women. Many have translated the title of this painting in English as “Models.” However, the French term for models who pose in an artist’s studio is modèles not poseuses. (Herbert 2004, 145). Poseuse can refer to a person “who seeks to attract notice by an artificial or affected manner” or is slang for a prostitute. (Nochlin 1994, 74). Such a title highlights the degradation associated with the profession. In response to such an offensive pronouncement, Seurat sought to protect the identity of one model in particular. One scholar has theorized that the model on the left is Madeleine Knoblock, with whom Seurat conducted a romantic relationship until his death in 1891. Seurat kept his relationship with Madeleine and their child a secret, insinuating a reluctance to make the relationship public due to her position as a model. Seurat’s choice to show only the back of that particular model in order to prevent the identification of the figure suggests that the model may have been Madeleine. (Cachin 1991, 286).
While details of the models’ “consent” regarding their depiction are obviously unknown, the models would not likely have a successful claim against the publication of these facts under today’s law, despite the supposedly offensiveness of the facts. The First Amendment generally protects artists against liability for any alleged violations of a right to privacy as non-commercial speech receives the highest level of protection. Moreover, a court would hypothetically find in favor of First Amendment protection for Poseuses under the Saderup test, as the artist’s creative expression and not a depiction of a specific person generates the value for this particular painting. Nevertheless, one may argue that the importance of Poseuses derives from its representation of these particular models and their relationship to La Grande Jatte. Regardless of theoretical or potential liability however, art, like the written word, can still serve as a vehicle to publish private details and thereby underscore potential injury, whether or not legal redress is available. The avant-garde nature of Neo-Impressionist art, like Poseuses, which deliberately eroded the boundary between private and public, illustrates a corresponding need for a right to privacy to balance such an approach to art and society.
Art’s Commercial Appropriation of a Likeness
Under the right of publicity, legal injury arises when an unpermitted use of another person’s identity, “reaping where one has not sown,” causes the loss of financial awards derived from the economic value of that person’s identity. (McCarthy § 2:2). Giving a person the legal right of control over the commercial use of his or her identity is an inducement to venture onto the stage of public opinion as recompense for sacrificing some personal privacy. (McCarthy § 2:6). Evidence of commercial value of one’s likeness is necessary for a successful right of publicity claim.
Seurat’s Poseuses demonstrates the inherent commercial value within the modelling profession derived from the model’s own likeness. Unlike the multitude of paintings depicting a nude female, Seurat’s Poseuses depicts women keenly aware of the commercial value of their likeness. Artistically, Seurat represented the three nudes not as “high-art” but as “hired workers for the artist.” (Herbert 2004, 145). The models are not posing for a picture but instead are displaying themselves to the artist, hoping to be hired to pose. (Thomson 1985, 146). An awareness of the financial benefit from their likeness may have induced the models to participate in such a public-facing profession in which literally and figuratively they must bare all. While nineteenth-century Parisian models likely had little social control over the use of their likeness, the exchange between artist and model illustrated in Poseuses parallels the basis for the right of publicity.
The artist’s aesthetic and commercial success with a painting depends in part on the professionalism of the models as well as their appearance. As part of this commercial exchange, the artist theoretically has the opportunity to “reap where one has not sown,” if he benefited from the commercial value of the model’s likeness without proper recompense or permission. Evidence of the actual transactions between Seurat and the models, such as any financial consideration or consent, is unknown. It is very much up to the viewer to imagine whether Seurat unjustly took advantage of these models’ likeness. However, regardless of actual details of the transaction, the relationship and interdependency between the artist and the model as depicted in the painting rely upon the same equilibrium and fairness encouraged by the right of publicity.
A Private Public Life or a Public Private Life?
Both the law and Poseuses responded to a changing attitude towards the scope of privacy that the sense of self demands. The rights of privacy and publicity acknowledge the value, either financially or socially, in this sense of self when the boundary between private and public is crossed with the publication of offensive facts or the misappropriation of a likeness. Seurat’s avant-garde techniques and attitude towards the female nude not only show but even underwrite the policies supporting these rights by providing a very public perspective into a disrespected profession. The relationship between Poseuses and these rights as discussed above reveals that the boundary between what is, or should be, private versus public is not distinct but like Seurat’s pointillism technique comprises of various facets that together make up the larger picture.
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