I am a cake designer. My job requires me not to create anything that is copyrighted. Unless I purchase a license (toy/provided picture). Drawing Mickey Mouse's face would be unacceptable. I'm an artist and can be very ambitious... My question is would drawing a celebrity's face be considered copyrighted? Especially a celebrity with a franchise? i.e. Justin Beiber or Duck Dynasty.
Estate Planning Attorney
The issue isn't copyright, but rather a celebrity's exclusive right to commercially exploit their own likeness. To use their image, you need their permission if you would like to do it legally. The process is not the same as licensing trademarks or copyrighted works as it is a completely different legal theory so do some more research on the publicity rights of each celebrity and get in touch with an attorney if you need help navigating the permissions. Good luck!
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Intellectual Property Law Attorney
I agree with attorney Hailey that the issue is publicity rights not copyright. Publicity rights protect against the use of the name or likeness of a celebrity. Texas recognizes such rights as you can see that the DMLP website here http://www.dmlp.org/legal-guide/texas-right-publicity-law
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
Intellectual Property Law Attorney
Yup, right of publicity.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
As others have mentioned, there is a "right of publicity" issue, which is entirely a matter of state law. This law is entirely different from state to state, and you will have to check to be sure. Because you seem to be looking for information ("Does a 'right of publicity' extend to cake decorations in the State of Kansas?") rather than advice, you may be able to get some help from the intellectual property professors at your local law school.
Note, however, that the analysis DOES NOT stop there. If you are duplicating an image from a photograph, there is probably a separate copyright held in the photograph itself, by the photographer. These are tricky areas.. consider the iconic "HOPE" poster from President Obama's 2008 campaign (I've included a link). The poster artist had to settle after it turned out he based the image on a photo he found online. Note that the artist would probably have been fine if he had started with a drawing he'd made of Mr. Obama himself, rather than a photograph.
Also, remember that using the words eg. "Duck Dynasty" may require separate trademark licensing even if the picture is in the clear.
I'm a lawyer, but I'm not your lawyer unless we sign an agreement. While my practice involves a wide array of national and international issues, I am licensed only in Louisiana- where the legal system can be unique. The brief informational response provided here is not a substitute for legal advice, and you may need to act promptly to preserve your rights.
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