Recent verdicts expand artists’ rights in celebrity depiction cases

Recent verdicts expand artists’ rights in celebrity depiction cases – Special Report

Joshua Kaufman

Several major cases in recent years have expanded an artist’s right to depict celebrities without permission or payment of royalties. Indeed, artists who incorporate celebrities’ images in their artworks are often on the receiving end of cease and desist letters from celebrity attorneys. While these letters are often quite serious and with much merit, several cases show a trend in which courts are finding First Amendment protection for artists using celebrity images in certain art works.

The right of publicity, in a simplified format, can be stated as the right of a person to control the commercial use of his or her name or likeness. Historically, celebrities have strong control over images of themselves. However, a number of exceptions have developed over the last several years which artists should take note of.

Model Sculpture

In 1993, a sculptor in New York was commissioned to cast an elephant for a wildlife preservation project. To prove that the process would not be harmful to the elephant, supermodel Cheryl Tiegs agreed to be cast to test the process. A life-sized body cast of Tiegs was made, but a workman dropped something on the cast and destroyed it. The sculptor sued for the loss of revenue he anticipated from the sale of the sculptures depicting Tiegs’ torso. Tiegs filed a motion to dismiss the case saying that she would not have granted the sculptor permission to sell the sculpture, and without her permission, the sculptor would have been unable to sell the sculptures. She said the fact the sculpture was destroyed was irrelevant as it could never have been exploited.

The court held that, “Although a person’s right of publicity is protected under New York law, it is a very significant right, and it must fall to a constitutionally protected right of freedom of speech. This includes nonverbal expression that covers works of art such as sculptures.” The court went on to state that “an artist may make a work of art that includes a recognizable likeness of a person without her or his written consent and sell at least a limited number of copies thereof without violating his or her right of publicity in New York.”

Print Predicament

In Ohio in 2000, artists scored another victory in the celebrity rights battle. Golfer Tiger Woods tried to stop an artist from selling prints depicting him playing at the Masters. Woods brought a claim based on trademark law and his right of publicity. The judge in this Federal court first found that Woods had not established his likeness as a trademark. The court found that even though Woods had a legitimate trademark in his name, it did not translate into the use of his likeness as a trademark.

After dismissing the trademark claim, the court turned its attention to Woods’ right of publicity claim. The artist argued that his prints are protected by the First Amendment because they are works of art and did not constitute commercial speech. Rather, the work expresses “the majesty of a newsworthy moment.” The claim made by Woods was that the prints were “merely sports merchandise” and not entitled to First Amendment protection. The court found the images conveyed a message and differed from a poster which merely replicates an existing photograph. The court went on to hold that paintings and drawings are protected by the First Amendment as are limited-edition prints made by the artist in this circumstance (the edition size was 5,000 prints). It also alluded to protection for photos and sculptures.

No Laughing Matter

In California in 2001, an artist created a charcoal drawing of the Three Stooges and sold them as lithographs and on T-shirts. The likenesses of the Three Stooges were extremely realistic. The owner of the rights to the Three Stooges’ likeness sued under California law, which prevents the unauthorized use of the deceased person’s likeness “on or in products, merchandise, goods or for the purposes of advertising, selling or soliciting purchasers of products, merchandise, goods or services.” The artist argued that the statute did not apply since the lithographs and T-shirts were not an endorsement or sponsorship of a product. The artist also made First Amendment claims. The court found the claims had merit but did not agree with the artist. The court adopted a version of the copyright law’s fair use test and found that the image was not sufficiently transformative to enjoy the First Amendment protection based on a fair use analysis.

What is important for artists about this case is that the court carved out an important exception to the right of publicity for art works. It held that if the celebrities’ likeness is just “raw material” for an original art work and it is the artistic expression that is the dominant attribute of the art work, then the artist’s First Amendment rights will trump the celebrities’ right of publicity.

What these three cases show is a trend in which courts are finding First Amendment protection for artists using the celebrities’ images in certain art works. No artist should take these cases as an invitation for the exploitation of a celebrity’s likeness without permission. But it does mean instant capitulation in the face of a cease and desist letter may also not be appropriate. These cases provide a need for a close analysis of whether celebrities’ permissions are needed in regard to the use of their images in art-related projects, which should be done on a case-by-case basis.

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