I have put sometime in this week towards trying to understand the usage of this photo from a legal perspective. A longer version of the below can be viewed in my blog post here.
The paper that I spent the most time with this week is by Kathryn Riley, from the Journal of Contemporary Legal Issues, vol 12, no. 1. It is titled “Misappropriation of Name or Likeness versus Invasion of Right of Publicity.” This paper provided a helpful overview about the difference in these two similar torts. Succinctly, it clarified that the misappropriation tort applies to the misuse (in image or name) of someone classified as an “ordinary, uncelebrated person.” The publicity tort deals within the realm of a celebrity figure, who would potentially lose financially from the uncompensated usage of their person. 
While the paper was outlining these differences, I was struck by some of the language and examples being used to describe the experiences. Specifically, “…the plaintiff was subjected to jeers and taunts from people who recognized her, and was bedridden as a result of distress and nervous shock,” and “…the personal injury is measured in terms of the mental anguish.” While commercially we have to deal with the legality of using this image, as an artist I feel I have to deal with the morality of using it. 
My current suspicion is that this woman has no knowledge that this photo of her is being used in the manner and scale that it is. This would mean that she is unaffected by it. However, if I continue in my pursuit of this project and specifically in identifying her, I could become the biggest cause of mental anguish. If I feel that using this woman’s image to sell these flags is morally wrong, then why do I feel ok using it for my own artistic purposes? The truth is I don’t really feel ok with it. But I am very curious and am continuing to pursue this curiosity. When the moment comes to culminate this work into a final piece, I hope to have a clear and respectful solution to this paradox. The paper describes the purpose of the law “…is to protect the individual from suffering anguish, stress, and embarrassment over having her name or picture published to the public.” I want this to be my purpose, too. 
The paper also clarifies that the “Rights of privacy are personal; they terminate when the individual dies.” This also places a limitation on who is able to file a claim. For example if a child of this woman suffers anguish from seeing their mother depicted in this way, they do not have a claim. The claim is a personal one. This feels like an interesting question/provocation to me. Are we the only ones who can assess personal injury and anguish for ourselves? As an outsider to the situation, what role do I have in this conversation? None truly, other than the one I am pushing my way into. 
Lastly, the paper underlines the two torts with this assessment. “For the celebrity, the invasion is not only personal; the concern is commercial, and more complicated than the bruised feelings and embarrassment an ordinary person suffers from being forced out of his zone of solitude.” The language here feels somewhat diminishing of a person’s experience. The emotion described actually feels incredibly complicated to me. I understand the law uses the word complication differently, but it feels important for me to note that the complexity of that experience and subsequent emotions is important and interesting to me.