celebrity masks

[scurd]

What is the name of your state (only U.S. law)? NC

Copyright/trademark law has got to be the most confusing and "up in the air" thing we as Americans have to abide by. But, I have an idea and I don't want to get in trouble because of it.

I am a mask maker. You may have noticed how in the recent past with the improvement of different rubber materials, masks are becoming more and more realistic.
Now I'm sure you have seen in the movies or around halloween the president masks. A bank robber with a George Bush mask for example. Now I think I could make these kinds of masks that look far more realistic than the ones commonly seen. If I made, for example, made an Obama mask or a Charles Manson mask that looked very realistic, can this be an opportunity for a lawsuit?

How about t-shirts? you see airbrushed t-shirts with faces of rappers etc all the time.. how does the law look at these kinds of things?

 

[quincy]

The law would generally look at masks and tee shirts that feature the images of famous people as a privacy/property rights issue and not as a copyright issue (unless the image used for the tee shirts was a copyright-protected image pilfered from a copyright-holding photographer).

Famous people make a lot of money off their names and images. Some, in fact, acquire the bulk of their wealth through endorsement deals (think Tiger Woods. . . .although perhaps not so much any more ). Companies will often pay millions to entice a celebrity into endorsing their product or service and/or to appearing in their advertisements. And many celebrities will trade off their famous name and image by developing product lines of their own (think Jennifer Lopez perfume or Justin Timberlake apparel).

States have laws that are designed to protect these property rights. Without a license from the particular famous person/celebrity to use his/her name or image, you would be infringing on his/her rights. Even ordinary everyday people like you and I have rights in our images, but these are often not worth very much . Even so, I could not use your name or image to sell my brand of coffee, without your express written permission to do so (and generally some compensation to you for the use), without risking a lawsuit.

While some famous people will not sue over the unauthorized use of their image or their name or some other aspect of their persona (mostly politicians, who may believe that any public exposure is good exposure), others will not hesitate to sue (Cal's Governor Arnold did, for instance, over a Bobblehead likeness).

So, to make masks or tee shirts of the type you are considering, you would be wise to consult with an attorney in your area, so he can review your plans first and to help you, possibly, acquire licenses for the use of the images, this to protect you from a lawsuit.

As a note: I kind of doubt that Charles Manson is in any position to sue over the use of his image for a mask - but then, I also kind of doubt that there would be much of a market for a Manson mask, either.

 

[justalayman]

quincy, isn't there something that because of a person being a public figure (Obama/pres Arnie/gov) there is a freedom to use such public figures for such products? I must be thinking of something not quite right if Arnie sued over bobble head dolls but I thought there was something about public figures that got around the use limitations.

 

[quincy]

Nope. No such exception exists for public figures.

The right of publicity is a person's exclusive right to use and to prevent others from using, for a commercial purpose, their name and likeness (and often other aspects of their persona like voice or mannerisms).

Ty Inc, for instance, (seemingly) attempted to capitalize on the Obama's popularity by manufacturing dolls in (what many believed to be) the image of the Obama daughters, Sasha and Malia. Ty Inc claimed the dolls were not really patterned after Malia and Sasha - and there was no real indication that the Obama's would sue over the marketing of the dolls. But the Obama's displeasure over the dolls was widely reported and the bad publicity Ty Inc was receiving led the company to withdraw their "Marvelous Malia" and "Sweet Sasha" dolls () from the market in 2009.

And Oprah and Dr. Oz sued over the use of their images in Acai Berry ads. And Woody Allen sued American Apparel over the use of a model in their ads that resembled Allen. And, as I said, Arnold Schwarzenegger sued Ohio Discount Merchandise Company over "Arnold" bobbleheads (the company and the Governor reached an out-of-court agreement, whereby all profits from the sale of the doll now go to Arnold's All-Stars after-school program). Similar bobblehead dolls of Hillary Clinton and other politicians did not lead to any legal action, however.

Many politicians will not sue because, one, they like the free publicity that a product like a bobblehead doll can bring and, two, a lawsuit can attract the wrong kind of media attention.

Public figures lose a lot of their privacy rights when they become public figures. Public figures can often do little to prevent the media from following them, photographing them and writing about them (unless the following, photographing and writing crosses a legal line).

BUT, what a public figure loses in privacy rights he often gains in publicity rights - and these rights can be worth millions and millions. The Brad Pitts and the Angelina Jolies of the world market their names and their images to companies all the time.

So, bottom line, it is not legally okay to capitalize on the image of anyone (famous or not) without express permission to do so. The more famous the image is that you try to use, the more money you stand to lose, should you be sued for infringing on these often very valuable publicity rights.

 

[justalayman]

And Oprah and Dr. Oz sued over the use of their images in Acai Berry ads.

that sounds like it would be based on an inferred endorsement though.

And Woody Allen sued American Apparel over the use of a model in their ads that resembled Allen.

same thing

Public figures can often do little to prevent the media from following them, photographing them

except in California where it is now apparently illegal to take a picture of a "famous" person if they do not want you to. Can't remember the specifics about the law but it sounded ludicrous to me when I read about it.


so, does that mean that the presidents, or their heirs (since there is no living president on US money), can sue the US government for using their likenesses on money? While I cannot imagine anybody doing so, if a person owns their image, it would make sense they could sue for the use if permission was not previously obtained.

 

[quincy]

Publicity rights rarely survive death - so Ben Franklin's heirs cannot sue. Elvis Presley's heirs, however, potentially could - which is why Elvis is not pictured on our currency.

As for Woody Allen and Oprah, yes, those ads are considered endorsements and an endorsement is a "commercial" use of a person's persona, as would be a bobblehead doll of Arnold or a paperdoll of Justin Bieber or a golf club with Arnold Palmer's name on it or a coffee mug with the image of Conan O'Brien or a tee shirt picturing Obama. For ANY commercial use of another person's image, permission should be sought and money will (generally) need to be paid for licensing the use, or the person who is using the unauthorized image could face a lawsuit.

With endorsements, as with any commercial use of an image, comes money. A company will not license the use of a person's name or image unless there is money in it for the company as well. And, just like a company, a regular-old individual will probably not want to market tee shirts with his aunt Flo's picture on it or market masks of the corner grocer, because there is more money to be made on a tee shirt with the cast of "Twilight" pictured or on a mask of, um, Charles Manson (?).

 

[justalayman]

quincy;2688597]Publicity rights (rarely) survive death - so George Washington's heirs cannot sue. Elvis Presley's heirs, however, potentially could - which is why Elvis is not pictured on our currency.

the 3 stooges, Einstein, Elvis, maybe John Dillinger (couldn't find the outcome of the case) seem to be protected

but Marilyn Monroe's image isn't.

What I have found is this is somwhat based in state law. If the state allows the protection after death, then it is possible. If not (as in Monroe due to her residence being NY at her time of death and NY does not allow for postmortem protection), then the persona becomes of the public domain. Not sure about Einstein though as he is owned by an out of country entity.

And a regular old individual will not want to market tee shirts with just anyone's name on it, because there is more money to be made on a tee shirt with the cast of "Twilight" on it than, say, one with a photo of you on it (although your image may be cheaper for a person to license).

I see how you feel about me now. I feel I am worth so much more than any of the Twilight cast. (that's the one with the vampires, right?) THEY SUCK!!!!)

Don't get me wrong. I believe a person should be able to control their image, even after death. It appears that while alive, the answer is simple. The problem is for postmortem rights. There doesn't appear to be any consistency or basic rules in determining whose image is protected and whose isn't.

 

[scurd]

thanks for the input guys.

Last night, I did a little more research on past cases surrounding this topic of celebrity likenesses. Apparently it is a pretty hotly debated topic with a line drawn among two schools of thought. On one side you have those that defend the first amendment and on the other side you have those that defend the right to publicity.
Those on the side of first amendment point to the fact that celebrities are not just people but they are also public icons. For example, the image of James Dean or Eminem may represent a rebel attitude or ideology not just their mere individual being. The other side points out that time and work went into that person developing this persona/notoriety and deserve compensation.

The precedents seem to point to a decision of whether the work is derivative or transformative. The question has to be asked "Is this work an original creation by the artist illustrating a trait or idea about the subject, or is it just a copy of the person's image." For example Caricatures or political cartoons are generally protected but a carbon copy portrait of the person is not.

*I think that's how the masks I talked about in the original post get away with it. My idea was to make them look MORE like the person, but I think the fact that they look LESS like the actual person and more like a caricature is what makes them ok.

* By the way.. I think there may be more of a market for Charles Manson than you think, he too represents a certain ideology (not one that I would wish to relate myself to, but there is a subculture out there that certainly would). Another thing to consider in mask making is that we often seek to bring to life something that a person may fear. For some this may be zombies or vampires, or for some it may be real-life serial killers. I know your statement was made in jest, but this may just be some food for thought.

 

[quincy]

This is really not a First Amendment issue, scurd, as the First Amendment does not (often) allow a person the right to trample on the rights of another. Rights that people have that can trump another's First Amendment rights are the right of a person to privacy/publicity and the right of a person to protect their reputation through the control of how their name, image and persona is presented to the public. There are exceptions here, however (ie. editorial uses, news report usages).

The derivative/transformative arguments are copyright-based and, as I said earlier, this is not so much a copyright issue. A person cannot copyright their persona as such, although it is possible to copyright how that persona has been expressed in tangible form (ie. film, photos, text, music). If a photographer takes a photo of a person, then the photographer has a copyright in the photo he takes and he can prevent others from using the photograph, but the person whose photo was shot can control how this image of him can be used in a commercial manner by the photographer (through a release form or a license), because the person whose picture was taken retains the rights in his image.

As an additional note, many public figures (the Einsteins and Elvis') have trademarked their names and images so, in addition to publicity rights that may be protected after-death through state publicity rights laws, a trademark can prevent the use of these names and images after death, as well. In Einstein's case, the Hebrew University of Jerusalem owns all things Einstein through trademark rights, and they are very protective of how his name and image is used. They have sued over unauthorized uses in the past.

Trademark rights, often in combination with state right of publicity laws, will allow for a trademark holder to control the commercial use of his/her/or other's names and images long after the individual's death.

There are fair uses, as you noted, when the image is a parody or a caricature, but the major problem with fair use is that it is a defense to a legal action and does nothing to prevent the creator of the parody or caricature from being sued. A court is left to decide if a use infringes on the rights of another.

As a clarification to an earlier point I made, there is an exception of sorts under the First Amendment for the use of a politician's name or likeness, this when the name or image is used in campaign literature. Suits have arisen over these uses before, but mostly for defamatory text and not for the use of the names or pictures of the politicians.

And, as another note, "misappropriation of a name or likeness" is a publicity rights tort often included as an invasion of privacy tort under state laws, although in New York it is covered under their Civil Rights law. State laws, as justalayman said, vary in wording and in what, exactly, will be included as publicity rights and whether these rights will survive death.

I did understand, by the way, the reason for you considering the Charles Manson mask, scurd. There are few characters scarier and, for a Halloween mask, the Freddy Krueger-style masks, while scary, are fashioned after a fictional character. Manson is a real-life ghoul and that can lend greater creepiness. My feeling is that it is not Manson's face that makes him scary, though, but his eyes. . . .which are hard to capture in any mask. And I am not sure there are many under a certain age who are as familiar with Manson as they are of Freddy Krueger.