Sunday Mailbag

Q: I’m a caricature artist and looking to make a profit by selling my work online of celebrities. Do I need permission, a contract, or can I just do it blindly?

A: I get this question (or variations of it) quite often, so every once and a while I just answer it again for those you may be newer readers and who don’t slog through years of back posts.

Standard Disclaimer: I am not a lawyer, and don’t even play on on TV. This article should not be mistaken for professional legal advice, and anyone with legal concerns over this or similar issues should seek the advice of a professional lawyer… I understand there are a few in the Yellow Pages.

The more common variation of this question professional caricature artists ask is “Can I use caricatures of celebrities in my promotional materials and/or website?”. You can find that specific answer here, but the short answer is that yes, using caricatures of recognizable people is the only way to demonstrate your skills as a caricature artist, so using celebrities as samples would probably be considered “fair use” by the courts, and therefore not infringing on the rights of the celebrities depicted. That’s as long as the way in which the images are used do not imply that a specific celebrity is ENDORSING an artists work.

As far as selling the images, that is a more complex issue.

The rights of a celebrity as they pertain to the use of their image is called the “right of publicity”. I have a very detailed and long winded post about this legal issue here. There is a lot of confusion about what the ROP is and what it protects. It isn’t a law that prevents someone from displaying, using or selling the image of a celebrity, either in photography or art. It’s a law that protects the value of a celebrity’s image, or that celebrity’s ability to earn money from their image. Using caricatures as an example, it is immaterial if you are selling a celebrity’s caricature or not, but how you are affecting that celebrity’s ability to sell caricatures of themselves. Some people don’t seem to be able to grasp that point… you could give the caricatures away and still be susceptible to a ROP case. The best way to explain that is with this example: Say an author writes and publishes a novel, and another person makes copies of it and starts giving those copies away for free. That person giving them away might not be making any money from it, but they are damaging the ability of the author to sell copies as those who get the free one will likely not pay for an official copy. That is how the ROP works… by legally recognizing the value of a celebrity’s image and fame and protecting that value to the celebrity. Even if that celebrity is not actively selling their own caricature, their ability to do so in the future is being damaged by someone else selling or giving them away.

All that being said, doesn’t the 1st Amendment guarantee us the right to express our opinions on a subject or person? 1st amendment and “fair use” defenses are the primary counter moves to a ROP suit, but they don’t always apply neatly.

So, how does that apply to selling caricatures of celebrities? There are a lot of factors to consider.

1. Is it really a parody? Some people want to assume that caricatures are making fun of their subjects and therefore protected by the 1st amendment i.e the right of free speech. Not so. I doubt it would be enough to just draw a celebrity in caricature and then call it a free speech issue. What are you trying to say, that Harrison Ford has a crooked nose? That is not OPINION (he DOES have a crooked nose) and highly suspect as a free speech issue. Here are two different caricatures of Tiger Woods:

   

   

   The first caricature is an exaggerated image, but is it enough of an opinion that it should be protected under the 1st amendment? I’d argue no. Yes, there is a “$” on his hat but other than that it’s just a silly picture of Tiger Woods.The second caricature is a little different. This one is more of an indictment of Woods’ beat up reputation and how scandal can damage the brand of a pro athlete. I could probably add some dollar signs flying around Tiger’s head and the gate to “AT&T” or some other sponsor that dumped Woods with a huge padlock on it in the background to make the point even clearer. That would become more than just a picture of Tiger, but a real editorial commentary and therefore a lot more defensible as a free speech issue.

2. The medium of production is important– With regards to a possible 1st amendment defense, how the caricature is produced is an important issue. It’s been shown in a few similar (but not exactly parallel) legal cases that courts take the manner in which the image is produced into account. There are some vehicles of free speech that are well protected by the courts: books, magazines, newspapers, other published materials and fine art. I emphasize “fine” because this is a key point. Original artwork is recognized by the courts as fine art, as are certain forms of reproduction like glicee or other high end prints, particularly if they are numbered as limited editions never to be reprinted. Mass produced things like posters, t-shirts, coffee mugs and other merchandise are NOT recognized as vehicles of free speech, and would likely be considered a product regardless of the image depicted on it and not a protected vehicle of free speech. Likewise prints done on your ink jet printer at home would probably not be considered fine art and a 1st amendment defense would be tough to pull off.

So, can you sell caricature of celebrities or not? Unfortunately, as anything the law, you don’t really know until you or someone goes to court over this exact issue, and even then it’s never a sure thing.

I asked this very question several years ago to a well respected ROP law expert, and received this advice:

If you want to sell prints of your caricatures of celebrities be sure you limit your exposure to a right of publicity case by doing the following:

1. Make sure your caricature is more than just a cartoon portrait, it should contain a clear editorial message about the subject, their profession, their work or some other aspect of their industry.

2. Create limited edition prints of the artwork via a printing process beyond your desktop printer. Clearly indicate this is a limited edition not to be reprinted.

3. Stay away from doing images of well known litigious celebrities or the estates of deceased celebrities like Marilyn Monroe or Elvis Presley. Likewise be careful depicting celebrities in the persona of characters from well known litigious property owners like Lucasfilm, Disney, etc (a caricature of Johnny Depp is one thing, one of him as Capt. Jack Sparrow is another).

If you are contacted by a celebrity threatening legal action over your selling of their image, my advice would be to write them a letter saying that, while you believe you are within your rights to sell this image, you will stop selling it in respect to their request you do so. Do not admit to wrongdoing and specify that stopping the sale of the image does not suggest you think you are infringing on their right of publicity… you are just stopping it out of respect for their personal request.

That last bit of advice is pretty smart. Likely no celebrity will even know or be aware of your selling of their image, and further most will probably not care knowing there is no money in suing you. However a few out there might be aggressive enough to go after a caricature artist selling their image. Following the above advice will most likely avoid the courts, while not preventing you from your other images. Most celebrities will be satisfied that you stop selling their image.

The really important thing to remember here is regardless of if you are in the legal right to sell these caricatures, the reality of the law system in this country is not if it’s legal so much as if you can afford to prove it’s legal. Presumably a celebrity would have a lot more financial resources to pursue a court lawsuit than a humble caricature artist would. Proving your right to sell such an image in court would probably cost you far, far more than you ever could get from the selling of such an image. Therefore it would only make sense to pursue such a case, and the possibility of years of appeals, if you are insanely rich and want to make a point. Otherwise it’s smarter to stop selling the caricature of celebrity “B” and simply continue to sell those of other celebrities, taking any threats of legal action on a case by case basis. The danger here is if you draw a crazy celebrity who is insanely rich and wants to make a point, you might have no choice but to defend yourself in court. Therefore selling celebrity caricatures might leave you financially vulnerable.

Finally, if you want to know my real opinion on whether or not you should pursue selling your celebrity caricatures… look no further than my website. I am not selling my celebrity caricature samples. That should tell you something.

Thanks to AV for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me your questions and I’ll try and answer them here!