Someone is claiming Intellectual Property rights on an illustration I drew because it looks like their cat. They are claiming their cat is a celebrity and therefore they have the rights to publicity. I am not using their cat's name or any verbiage pertaining to their cat to sell my image. Do they have the right to make this claim and can a cat be considered a celebrity and have Intellectual Property rights?
Ok, I am going to list links to the cat and my drawing and let you be the judge. Does my drawing look like his cat enough for him to be able to claim IP rights? His cat: http://www.grumpycats.com My drawing: http://creativeideadesigns.com/pissycat.png Keep in mind I am not selling this as GRUMPY CAT and making no reference to Grumpy Cat at all. UPDATE: I finally decided to send the guy a message and asked to speak with his attorney about this matter and he backed off. So thanks guys for your suggestions, especially Sidney for suggesting I contact him about a lawyer :)
I agree with Attorney Natoli. On a practical level, it's not unusual for non-lawyers to make legal claims that no actual lawyer would ever assert. In this case, the range of possible circumstances under which you might have some liability seems very narrow. As such, I would suggest that you try to convey that you're willing to discuss the issue, but only with a lawyer. Then, if they provide the name of a lawyer, you should get a lawyer of your own. In my experience, insisting on dealing with a lawyer filters out a good number of frivolous claims.
This is a preliminary remark based on incomplete information in an informal inquiry. It is not intended to create an attorney-client relationship, and should not be relied upon as legal advice. If you have a legal matter that concerns matters that are important to you, you should always have an in-person consultation with a lawyer who practices in the area in which you live.
Without getting into a whole discussion on publicity rights, how could one distinguish affirmatively that the cat you illustrated was in fact the same cat they claim it is?
I mean, I own two cats that I adore and think are special cats, but clearly they look remarkably like all the other cats in the universe. I think unless the circumstances are extremely unique here this would be a very hard case for them to support.
Keep in mind two, that publicity rights cases are governed under state laws and each state is different regards to how the courts will come out. This assumes of course that a cat can have these rights; I would assume that a very famous celebrity animal through its owners may be able to assert this claim.
You may also have proper defenses both under publicity rights claims as well as copyright claims. The cat or it likeness has no IP rights by itself, but I suppose it is entirely possible under certain scenarios that your illustrations could infringe.
For example, if you illustrated a drawing of the famous Lassie perhaps something you based on one of the episodes, it is entirely possible that a court would find that your derivitive work not only violated the intellectual property rights of the studio that owns the copyright (or whoever owns it) to the work you based your illustration on, but also the publicity right (perhaps) of Lassie and her owners. The latter argument is certainly a nuanced one.
Unless this cat was in fact a celebrity whereby clearly identifiable to the general public at large from your work, I cannot see how this would be an issue because if otherwise there is no possible way to make any such distinction.
If you are really concerned that this may be a legal issue, you should consult someone just to offer a best course of action.
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Patent Infringement Attorney
Give Shane Cortesi (in Nashville) call and let him know I sent you.
Intellectual Property Law Attorney
I think you are in trouble and are not not meowing fully to us. Surely this is Hello Kitty or Garfield or Morris The Cat, not just some wacko claiming rights to their pet. And, my guess is you are selling your illustration or it would not come to their attention. So, with that all in mind you need to see a trademark attorney. There are a bunch of good trademark attorneys in the home of country music. You should not ignore this, you should go see one.
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.
Pets do not normally have statutory rights of publicity--but they might be characters protected by trademark law or copyright law. I could not begin to advise you as to how serious you should take this assertion until I view the cat in question and the illustration that you drew. Further, I would need to understand the extent to which the cat in question is, in fact, well known as a character and/or animal "celebrity". It is not impossible that you could be liable for IP law violations in a situation like this, but the devil is in the details. Note that your second to last sentence makes me wonder if your question has revealed the entire story----you say that you are not using the cat's name or any verbiage pertaining to the cat----but the key to understanding you risk here would be to analyze "any verbiage pertaining to the cat". You should not assume that merely because a pet (cat) is involved, that somehow this immunizes you from potential liability for violation of IP laws.
Personal Injury Lawyer
Speak to a lawyer. You could be charged with a Feliney (felony). Sorry, couldn't resist. ;-)
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