Celebrity Likenesses in Fine Art
by
Cindy Hill, Esq., for Fine Art Registry®
Can I paint a picture of Pierce Brosnan?
Given my dubious painting skills, the practical answer is a resounding No. But let's pretend that I actually had the technical ability to paint such a picture. Can I do so, legally? The answer is a resounding...Maybe. The "right of publicity," which protects a person's legal power to control the use of their own image, varies widely from state to state. However, as a general rule, while single, original works of art that represent a recognizable person are granted strong First Amendment protections, works that don't display enough originality as well as commercial reproductions (like posters and coffee mugs) present significant legal and economic risks for artists who don’t get an appropriate license to use a person's image in their artwork.
Right of Publicity
The United States Constitution does not explicitly protect a right of privacy, but over the years, in the face of legal questions involving increasingly personal matters (like regulation of birth control), the U.S. Supreme Court recognized that the rights which are explicit in the Constitution are tied together by common threads which imply that a person has a right to be left alone. The right to be free not only from governmental intrusion, but from unwanted and unwarranted publicity, grew into a body of common (court-made) law which has traditionally made distinctions between the privacy of ordinary citizens and that of celebrities or public figures who intentionally seek the limelight. I may well have a legal right to complain if the news media takes up-close shots of me in a bikini and publishes them as full-page pictures in the paper, but a model or actress may well not have the same legal claims since she is a public figure and therefore her appearance on a beach may well be considered newsworthy.
In the 1950s, the growing body of law concerning a right of privacy took a half-twist and began to recognize another right which is almost a mirror image of the privacy right: the right of publicity. Judge Jerome Frank first used the term right of publicity in the 1953 federal appeals case Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953). In that case, a baseball player licensed his image for inclusion in a chewing gum sales promotion - i.e., baseball cards - to Haelan Labs. But Topps went ahead and produced their own card of the same player without license. There was no question that the baseball player was a public figure of sorts, and had been photographed engaged in his public activity of playing ball. But the Second Circuit Court of Appeals held that as part of the right to privacy, a person has the right to control the commercial exploitation of his or her own image. A baseball player can license the right to use his photo for cards to one company, and not to another, and a company cannot commercially exploit a ball player by selling cards imprinted with his photograph without that player's license.
Varied State Laws
Since the 1950's, at least nineteen states have adopted state statutes protecting a right of publicity, and another nine states have adopted a common-law publicity protection through court case decisions. Unfortunately for artists, these statutes and laws vary quite widely. For example, California and New York - two states with large populations, large television, stage, and movie industries, and a propensity for abundant litigation - fall at the opposite ends of the spectrum, with California statutes protecting a person's image for decades beyond their death, and New York denying nearly all protection of publicity rights. Indiana is reported to have the most stringent publicity-rights protection statutes, affording protection of a person's image for 100 years after their death and including not only explicit pictures of the person, but also their voice, gestures, and other identifying characteristics.
It is difficult to discern common threads between the court case decisions that have come out of all these various state schemes, a circumstance with in itself suggests that artists should exercise profound caution in incorporating celebrity or public-figure images into works that will be reproduced for sale in multiple states. In addition to caution, the one other theme which arises from the spectrum of complex case law is that the more interpretive, artistic, or original a piece is, the greater the weight of First Amendment protections for it. In other words, a single, highly stylized painting or sculpture including a celebrity image is more likely to be found by courts to be a protected artistic work than a photo or simple, realistic rendering reproduced on millions of commercial sale items. Though it does seem that as a general rule, courts rely more heavily on the issue of artistic rendering and interpretive content of the work than they do on the nature and number of reproductions made. Two leading cases which illustrate this point also demonstrate how broad the spectrum of celebrity likeness and publicity rights law is: the first involves a charcoal drawing of the Three Stooges reproduced on T-shirts, and the second a stylized, complex oil painting of Tiger Woods and other famous golfers, sold only in exclusive limited edition lithographs.
In Comedy III Productions, Inc. v. Gary Saderup, Inc.25 Cal 4th 387 (2001), the California Supreme Court evaluated a charcoal line sketch of the Three Stooges drawn by artist Gary Saderup. The image was being sold on T-shirts, with some significant financial success. Comedy III Productions owned the rights to the images of the Three Stooges; under California law these publicity rights continued beyond the death of the actors being portrayed.
The California Supreme Court seemed unconcerned that T-shirts were the medium for portraying Saderup's sketch, noting that other First Amendment law cases had found T-shirts to be appropriate venues for sharing, for example, protected political messages. The court's approach to analyzing that balance between Saderup's First Amendment right to creative expression in marketing his sketch and Comedy III's right of publicity in the Three Stooges images rather took a tack bordering on comparative art criticism. The court noted that the development of an image into one of broad and instant positive recognition is itself a creative work, worthy of protection. The images of Elvis, or Groucho Marx, or the Three Stooges, took years of dedication, learning, and applied skill.
The court then looked to Saderup's rendering and asked, in effect, how much of the commercial value of this rendering is due to Saderup's artistic skill, and how much of it is due to the Three Stooges' own success in their performance arts? In answering this question, the court looked to a term used by other courts in evaluating whether the incorporation of an image into another artwork or academic work was fair use under the copyright law: was the work "transformative"?
Transformation
While it is useful to have a guide for the legal standard as to when a publicity right is being violated by an artistic rendering, the question of whether a work is "transformative" is awkward and troubling. It leaves the court sitting in judgment on the relative artistic worth of the work. And yet, it's also hard to come up with some other way to balance the competing rights and interests.
In the Three Stooges case, the California Supreme Court determined that they could "discern no significant transformative or creative contribution" in Saderup's rendering, and granted judgment to the publicity rights holder, along with well over $100,000 in costs and fees.
In ETW Corporation v. Jireh Publishing, Inc., the federal Sixth Circuit Court of Appeals took up the question of publication of reproductions of a painting by Rick Rush, America's Sports Artist, portraying Tiger Woods at the Master's Tournament in Georgia. ETW is the corporation which owns all rights to the use of the name Edrick Tiger Woods; Woods utilizes this corporate entity to handle, for example, his licensing and advertising agreements. In the tradition of other great American sports artists like Leroy Neiman, Rick Rush paints stylized compositions of celebratory moments in sports. These works are sold in a variety of forms, most notably limited-edition lithographs. The particular image at issue portrayed several perspectives of Tiger Woods taking the shot with which he became the youngest player to win the Master's. The image showed a pantheon of golf greats from generations past looking down on Woods with approval.
The Sixth Circuit court stated that "applying the transformative effects test adopted by the Supreme Court of California in Comedy III, we find that Rush's work does contain significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest protected by Woods’ right of publicity. Unlike the unadorned, nearly photographic reproduction of the faces of The Three Stooges in Comedy III, Rush's work does not capitalize solely on a literal depiction of Woods. Rather, Rush’s work consists of a collage of images in addition to Woods' image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods' achievement in that event. Because Rush's work has substantial transformative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods' right of publicity must yield to the First Amendment."
The developing common law represented by these two cases provides artists with only rough guidance as to the legal parameters for incorporating celebrity images into their works. The ground will never be entirely secure on this particular artistic path, but bearing in mind the "transformative" test, artists can at least begin to assess their own creations as to where their own work might fit in a court's view. But the better path may well be to secure license - a process we’ll examine in the next installment of this column.
— by Cindy Hill, Esq.
| June 4, 2008 |
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