Can I sell my own artwork depicting a celebrity?
4 attorney answers
This is actually one of the hardest questions that IP lawyers face in their practice. This is because the First Amendment rights of artists may conflcit with the rights of publicity belonging to celebrities. While many courts have held that the first amendment right of artists will prevail if the artwork is "transformative", determination of whether a work is "transformative" is often quite difficult and controversial. Andy Warhol's paintings likely would be deemed Transformative because Warhol plainly spoke with his own, unique voice when he transformed images of celebrities and/or trademarked products (Campbell's Soup Can) into his original style. However, there are many other circumstances where determining whether the painting is "transformative" is a much more difficult judgment call.
Let's talk practicalities, however. If you make a single painting of a celebrity and sell the painting, chances are the celebrity will not come after you. Sale of a single painting probably does not harm the celebrity's ability to exploit his image and name commercially, and the damages that the celebrity would be able to prove from your use of his image in this single painting would probably be minor. Thus, if you plan to make a single painting of a celebrity and sell it, you probably will be ok (but this is not an absolute guarantee that you will be ok).
However, if you use a celebrity's image or face to create a portrait, poster, or drawing and then you print thousands of copies of your portraint, posture or drawing for purposes of selling them to the public, there is a much higher probablility that you will be accused of violating the celebrity's right of publicity.
The bottom line is this--you should retain IP counsel before selling these paintings, disclose all the facts and circumstances to such IP counsel, and then make an informed determination based on advice of such counsel as to whether you should sell the photographs. But even the best IP lawyer in the world cannot guaranty that you will not get sued if you sell these paintings. Lawyers can help clients understand possibilities and probablities, but we cannot guaranty outcomes. And there is nothing you can do (other than obtaining written permission from the celebrities in the paintings) to eliminate the risk that you would be sued by the celebrities if you sell the paintings.
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Painters and the paparazzi are not the same – and neither is their creative output. While the output of both fall within the protections provided by the First Amendment, a painting is protected under the “free speech” clause while a celebrity photograph is protected under the “free press” clause. In short, paparazzi can sell celebrity photographs [and publishers can publish them] because what the celebrity is doing, or not, in the photograph is either “news” or it forms part of a “news” story about the celebrity.
A painting of a celebrity, on the other hand, is not news and is not protected under the free press clause. It may, but only may, be protected speech. The complication is that selling a painting of a celebrity runs square up against the celebrity’s “right of publicity” – that is, the celebrity’s exclusive right to use his or her image for commercial gain.
The rule in California is that a painter MAY sell a painting of a person [to someone other than that person] if the painting “contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame. “ The controlling case states that “Another way of stating the inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. … We ask, in other words, whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. And when we use the word ‘expression,’ we mean expression of something other than the likeness of the celebrity.”
So … if your painting is a merely a faithful likeness of a person then you need that person’s permission to sell the painting. But if your painting conveys other, significant information in a way that does not simply trade on the person’s likeness, then you do not need that person’s permission to sell the painting. You need to have an intellectual property attorney make that call – and explain to you that even if your painting is “transformative,” the celebrity can still sue you and you would have to pay lots of money to defend that lawsuit. Good luck.
As always with all legal issues, the answer is it depends. Your paintings are copyrightable and you absolutely have the right to sell them. The question then becomes, what is your liability if you do sell them? Is a celebrity going to come after you for violating their right of publicity?
It depends on how you sell your paintings. If you are selling in a private sale to a private buyer, then the chances of a celebrity coming after you are slim to none. However, if you ramp up and are making copies and trying to sell mass market, that might get some attention and greatly increase the chance that a celebrity or a rights holder will come after you.
However, artists have a First Amendment right to express themselves, and in the recent Tiger Woods case, the court found that the artist’s First Amendment rights were more important than Tiger Woods’ right of publicity. You can read the case and compare your facts against the ones in the case and perhaps get an idea of where you stand.
Rights of publicity are protected under state law. Not all states have them, although most do. The scope of protection varies from state to state, and you should check the laws in your state.
My answer is for information purposes only, it is not legal advice, and no attorney-client relationship has been formed.
The celebrity's likeness is not copyrightable, but celebrities have a right of publicity. In addition, you must be sure you are not referencing copyrighted images of others to create your artwork. Specifically, if you get images from websites, magazines or newspapers they would be copyrighted and you should obtain permission of the copyright owner before using any such image.
Courts in recent cases have found First Amendment protection for artists using the celebrities' images in certain art works. These cases do not state that an artist can exploit a celebrity's likeness without permission. They do, however, suggest that on a case-by-case basis, there may be situations where a celebrity's permission is not needed to use their image without first obtaining permission.
You should consult an intellectual property attorney to discuss the facts of your situation to be sure you avoid any unnecessary expense or complications, including being a defendant in a lawsuit.
Disclaimer: This answer does not establish an attorney-client relationship and does not constitute legal advice. It is for general information purposes only.