In fact, using a nude model for fine art may get you or your model jail time, as photographer Zach Hyman found out while using a nude model in the Metropolitan Museum of Art.
So how does an artist know when to draw the line?
This interview with Rex D. Glensy, Director of Intellectual Property Concentration and Associate Professor of Law at The Earle Mack School of Law at Drexel University, gives artists a better idea of how to use a nude model when painting or taking reference photos without getting in trouble with the law.
The Basics of Using a Nude Model
Bradford: When using a model for artistic purposes, what types of laws should you consider?
Rex D. Glensy: Obscenity laws, and in particular, public obscenity is what you should check. These are part of the criminal law statutes of each state.
Also, make sure that the person who is going to pose naked is above the minimum age for appearing naked (18 years old in the U.S. and in most countries — in fact, under U.S. law, the photographer is required to take a copy of the ID of the model AND keep records of this even after the shoot is over should the government decide to investigate that particular shoot).
Any photographer who intends to shoot someone naked should get the model to sign a release form where the model consents to be photographed naked.
The release should always be as specific as possible, for example, if the photographer wants the model to engage in an obscene pornographic act, this should be spelled out in the release so the model cannot claim that he/she was ignorant about what was being asked of him/her.
Using a Nude Model in a Public Setting
Bradford: Is it illegal to use a nude model in a public setting?
Glensy: Generally yes.
Most states and municipalities have laws against public nudity. In other words, no nudity of any kind is allowed in public places where one would expect people to wear clothes (there are limited exceptions to this such as allowing women to breast feed, but posing nude would not be part of those exceptions).
Clearly, there are places where that expectation of being clothed is not present, such as in gender-specific locker rooms, drawing classes where one of the exercises is to draw a naked person, or in pre-approved clothing optional beaches or naturist camps, and therefore the act of posing nude in those places would not violate the law.
However, gyms and naturist camps have their own rules, so even though there would be no criminal illegality, one might violate something like a club rule. This is because people who go to those places might not want to be inadvertently photographed naked.
For example, in an ironic twist, I have seen a photograph of a placard which read “Nude Beach — No Photography Allowed.” I suspect in those cases, the penalty for disobeying would be ejection from the location rather than arrest.
How to Find Nudity Laws
Bradford: How can an artist find out about nudity laws in their state?
Glensy: One should consult the state and local criminal statutes. These are publicly available online and rather easy to find.
If using a public space where nudity is allowed, one should check the rules of that place (such as a club handbook).
More importantly, one should always ask permission. Municipalities routinely grant permission for the shooting of works of art (usually movies), including the shooting of nude people. So long as permission is granted, and there is adequate notice to by-passers that they might be subjected to nudity, problems rarely arise. Of course, permission could be denied as well.
So, according to Glensy, an artist can stay out of legal trouble when using a nude model by doing a little research and by using a clothed model in places like the Metropolitan Museum of Art.