Thursday, December 12, 2013

Wants to Sell Merchandise With Celebrity Images

great dictators cornhole boards from dear rich staff
Dear Rich: I have a question about the right of publicity. I want to start a website where I post artwork of a celebrity every day of the year, with the capacity to sell merchandise of the artwork. Is it legal for me to draw semi-abstract art of living and dead celebrities without their permission (not including their name on the artwork itself), and sell such merchandise? If so, is there an authoritative source I can point to in order for a printing company to allow me to do so? We think you can probably get away with selling the artwork even with the name of the celebrity (for example as limited edition prints) but we think you may run into a problem selling t-shirts, night lights, cornhole boards, coffins and other celeb-branded merchandise. (Celebs like to control branded merch, no matter how kooky.)
Artwork or merchandise? What's the diff?  Right of publicity laws prohibit you from commercially exploiting a person's name, image or persona. On the other hand, the first amendment grants you certain freedoms to express yourself with so-called informational or "communicative" uses -- for example, original artwork, articles, books, or documentaries. Although each state has its own laws and rulings, the trend has been to permit limited edition art prints. For example, in an Ohio case, an artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. A similar result was reached in a case involving the use of football player Jim Brown's name and image in a sports video game (The court considered the game to be art, though "not Anna Karenina or Citizen Kane.") However when the image use is on merchandise, the cases tend to rule in the favor of celebrities. (The term "right of publicity" was first used in a case involving a ball player's image on baseball cards.)
No copyright infringement. Also, we're assuming that the artwork is not derived from copyrighted photographs (or that your artistic abstractions make the source photo unrecognizable). Otherwise, you may be opening yourself up to another set of problems.


2 comments:

  1. I wonder if making each unique (as in signed and numbered) would help push the item into the 'artwork' category. While I have no idea about this, I would see a difference personally between something the artist handled personally, and something that was mass produced.

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  2. yes, limited editions lean towards the artwork side but probably the more important factor is whether the art is being sold for art's sake -- for example a two-dimensional reproduction that has no purpose other than as art. That is, it's not art slapped on a functional object such a s hat, t-shirt or keychain.

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