ABSTRACT
This Article considers the alarming yet critically underdiscussed legal conundrum posed by photographic subjects who seek to exercise ownership or use rights with respect to images in which they are centrally depicted and which were produced without their consent. Current legal frameworks facilitate the exploitation of these subjects, while systematically rewarding traditional image creators, including, and perhaps even especially, those who trade in nonconsensual image production. Centrally, under US federal copyright law, ownership rights typically vest exclusively in an image’s photographer or creator. This system denies photographic subjects equitable ownership and use rights to images of themselves, fundamentally ignoring the role subjects play in co-producing aesthetic pleasure and generating economic and (art) historical value, and disregarding the reasonable interest (some) such subjects may have in the use and ownership structure of images in which they are clearly and recognizably depicted.
Examining this issue through overlapping lenses of gender, race, and species, this Article interweaves historical and contemporary narratives (and counternarratives) of nonconsensual photographic subjecthood to frame the ongoing struggle for — and possibilities of — representational self-control within and outside of current legal frameworks. This Article explores non-conventional legal and law-adjacent possibilities for disrupting and recalibrating traditional image ownership frameworks, as well as more conventional strategies. Overall, it broadly envisions a legal paradigm shift away from the current absolute ownership model of art and images toward more equitable shared ownership frameworks that recognize certain ownership interests and rights attaching to subjects …
Husk, Sarah A, Rebuffing the Gaze: Toward the Legal Recognition of Ownership and Use Rights of Nonconsensual Photographic Subjects (September 1, 2022), 26 UC Davis Social Justice Law Review 187-234 (2022).
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