Right of Publicity and Parody
I got this email the other day from caricaturist Mike Giblin:
I’ve been reading extensively on your blog (and other sources) about Caricature and the Right of Publicity, and though a lot of it still has my brain in knots I’m beginning to see the distinction in what’s advisable and what’s not.
My question is to do with subject matter, specifically citing your Secret Agent Man artwork as an example. I understand that by offering the illustration as original artwork AND a limited edition print run, you’ve made a solid case for the fine art angle – and as such, there are no likely legal repercussions. However in one of your posts you mentioned that there must also be some kind of ‘parody’ element to a caricature illustration (i.e. your Tiger Woods example) in order to avoid a potential call from the lawyers. In this case is it Moore’s kung fu, Pierce’s panties, Daniel’s dishevelment etc what makes this illustration more than a straightforward portrait of the various James Bond actors – or is there some other loophole that I’m overlooking?
I thought this would make a good article, as opposed to a simple Mailbag Q&A. First, let me preface this by saying that I am not a lawyer, and I don’t even play one on TV. My comments here are based on my own research into these issues, precedents set in prior court cases and advice I’ve gotten from real lawyers who know about this sort of thing. Don’t mistake anything you read in this post with real and specific legal advice.
Doing a piece of caricature art of a famous individual or a cast of a TV show or movie and then attempting to sell reproductions of that art can bring either copyright or an individual celebrity’s “right of publicity” into consideration of having been infringed upon. Copyright is the protection of the earning power of a piece of creative work or intellectual property. You cannot draw a picture of Mickey Mouse and sell it on T-shirts, that infringes on Disney’s copyrights. Right of publicity is the right of a celebrity to protect the earning power of his/her image. You can’t produce a T-shirt with a photo of Elvis Presley on it without the permission of the Presley estate (even if you had taken the photo years ago). It isn’t even necessarily about selling what you create, but more about protecting the infringed party’s rights to profit from selling something similar.
There are certain situations where you could create a piece of art featuring someone famous or containing some copyrighted material, and not be infringing on anybody’s rights. MAD does it all they time with their TV and movie parodies. It’s depends on a lot of factors including how it’s presented, where it’s presented, its content, etc. You can read this post of mine on the different issues involved, but I’m going to focus primarily on doing caricatures and selling them as prints, like the “Secret Agent Man” art I did a few years ago Mike cites as an example:
Parody is one of those “situations” where you can create something that incorporates copyrighted images and celebrity likeness and arguably not be infringing on copyrights and right or publicity. Having the ability to make fun of something without fear of legal repercussions is one of the fundamental rights we have in this country, but what constitutes “making fun of something” is very much up to interpretation. That’s why people occasionally go to court over this sort of thing.What the courts seem to look at in these cases is if there is a legitimate editorial commentary being made and if the artistic part of the equation is a significant part of the appeal of the artwork.
What constitutes some sort of editorial commentary? In the case of the Bond print, I added touches that comment on the different treatments of the character by each of the different actors. It doesn’t necessarily need to be critical, just editorializing. My theme is this piece is: here are six actors playing the same role, and here are the things they did to make their take on the role different. Some of the things I pointed out are critical, like the goofy kung fu pose of Moore, or the overwrought seriousness of Dalton, and some are statements on the franchise as a whole, like the fact that only Craig of all the Bonds ever seemed to get hurt in his fights. Enough editorializing? I don’t know.
Another factor is the value of the “art” part of it. Andy Warhol was able to do what he did as his portraits had an “art value’, meaning that his artistic vision and interpretation has a value that was independent of the subject matter. Recently caricaturist David O’Keefe created a series of “tribute” fine art prints of the casts of movies like “The Godfather” and “Caddyshack”, among others:
Artwork ©David O’Keefe, www.davidokeefe.com
Artwork ©David O’Keefe, www.davidokeefe.com
Editorializing? Arguable. The personalities of the characters are certainly there but he’s not comparing them to other films or making some statement about the movie, the genre, the industry or any other thing that I can see. However David has created a unique look with his art, and has established a collection of this sort of fine art approach with very different subjects. He’s selling them as limited edition prints and that establishes a legitimacy as a fine art piece and not a “product” (although I see he sells them on T-shirts also… not sure how he’s getting away with that). The real question is “is the art style itself a large part of the appeal of this work, or is the subject matter all that matters?”. I’d say in David’s case, like Warhol’s, the art aspect of it is unique enough that people would want to own it to have “an O’Keefe” and not necessarily because it’s of the Godfather or whatever. David’s been selling these for a while and while I do not know if he’s heard from any of the copyright holders or celebrities depicted, you can bet some of their lawyers have seen these. He’s still selling them, so they must be okay with it.
On a much smaller scale I have established a series where I depict actors who play the same character but in different ways, which makes it a commentary on that sort of practice. I’m no O’Keefe or Warhol, but I do have some notoriety as a caricature illustrator as well as a recognizable “style” and people will buy these pieces not necessarily for the subject matter but for my art, so that could be argued if it comes to that. Plus I do have an element of parody with my prints, and that adds another layer of legal insulation.
Nothing is guaranteed, of course. One can be sued whether the lawsuit has considerable merit, no merit or some question the parties will ask the courts to decide. It is all very ambiguous. I won’t sell individual prints of many of my park style caricatures for the simple reason that I do not think they are “fine art” enough nor necessarily editorializing enough for a strong case against infringement of the subject’s right of publicity, or in the case of a cast the copyrights of a show or movie. Some do, but others do not.
I do have plans for more of this series of prints, by the way. So stay tuned for that.
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‘A work of visual art is…’
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author;…’
You can draw whatever subject matter you want as long as you don’t bluntly copy it or make it widely available. You don’t have to be super artistic about it (anything can be considered artistic), or transformative, or critical, just make sure to make it “limited” (even more than 200 copies the courts say, but not too many).
P.S. not strictly related to the previous clauses: one would argue that a caricature is always critical of its subject matter, so it can never be a violation; a caricature is the Get-out-of-Jail-Free-Card of Copyright Law because it’s a critical work by its very nature.
tl;dr: People can still sue you for anything but at least you have some very good counter-arguments.
Source? I’ve never heard any of that before, particularly the part about “200 or less” prints.
It’s a quote from the U.S. Copyright Act of 1976 (which took effect in 1978). That definition is applicable to things like your print, but it largely exists to draw the distinction between individual works and published ones.
It’s not the whole shebang. The Supreme Court ruled on transformative parody in 1994, upholding the right of “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”
The four main factors in weighing whether there has or has not been infringement of copyright are (Copyright Act again):
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
As an example, your Bond print clearly satisfies (3) and (4), and possibly (2).
The case in question BTW: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.
The court largely ignores 1) 3) and 4) in case of a parody (not the same market, yada yada yada) thus indirectly makes the caricature the only known art to theoratically fall under fair-use every time. At least, that will be my main legal argument in any caricature related case.
Disclaimer: people and ompanies will (threaten to) sue anything and anyone simply because they can. so, while cartooning, be critical of your subject to gain copyrights protection (fair-use), but don’t piss-off a company by making fun of its brand because they will sue you even without a proper legal cause (marketing rules).
tl;dr: want to draw safely? make your drawing funny enough to be considered a parody, but in case it’s a trademark you shouldn’t push it (just blur it, use only a portion of it, change the letters, the colors, the shapes and so on).
P.S. people can still sue you for using or defaming their personas (different laws, mostly regarding their name and appearance) but the U.S courts (unlike the U.K courts, mind you) prefer the right to freedom of speech over most rights, especially when dealing with famous people. So, again, your’e theortically safe, but don’t push someone to sue you over defamation (like the Oatmeal recently).
In case of posters that are connected to famous brands, which are not directly parodied in the posters, I would move all activity to a newly formed LLC and then get a formal legal advice (as in writing) to be equipped to deal with possible undeserving legal threats in the mail.
IMHO Tom is in a position to skip all that and get the consent of the original brand owners simply by referring his MAD association. Dave Rapoza did a similar thing with his Ninja-Turtles limited prints and he hasn’t been sued yet (as far as I know).
Great info. Are you a copyright lawyer?
I have researched this topic many times and still can’t seem to find a definitive answer. My customers often ask for their caricatures to be drawn wearing their favorite sports team shirt (ie; NFL, MLB, NBA). I have had 2 different lawyers give me 2 different answers in my state. Is this considered fair use of a trade mark or is is trademark infringement? I always assumed that being a one off piece of art that was drawn from a photo reference that this should not cause legal issues. Although, I do not want my assumptions to lead me into court. It seems that caricatures in general lead to a grey area in many parts of the law.
NO, heaven forbid! Let’s just say I have taken several classes about that specific topic while in law school, and not too long ago either.
It’s a solid advice, based on real knowledge, but not at all a legal opinion…
[…] He writes: […]
“I do have plans for more of this series of prints, by the way. So stay tuned for that.”- Oh, tell us you’re doing a Batman print!
Hey Tom, David O’Keefe does certainly does manage to take would be copywtite laws and duck them, there are a couple of things to consider, though foes make him a collectible artist, I don’t know, his art includes clay sculptures, I’m not sure what other mediums he works in, if memory serves correct, he did a sculpture of Peyton Manning as a Florida Gator that was an Sports Illustrated cover. Sports logos seem to not be a problem for him to get away, he has a painting of Tim tebow complete with Denver Bronco logo on the uniform. This you may know something about, I know you’ve done the Minnesota Twins. He did a lot of covers which included painting and sculptures for the Tampa tribune, where he worked for twenty plus years, was he hired as a pop cultures artist? Does that give him credibility? Is he depicting things that the subjects approve of? I know billy Murray likes and approves how he’s being depicted. Is he just small enough to fly under the Radar? O’Keefe does have a sponsor bank rolling his artistic endeavour, he seems to get an awful lot of his work enforced by the subjects. Maybe, and this is what I really think he sold his soul to the devil. Curious to know if any of this means anything
I’ll call him and ask.