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Likeness Copyright

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sharpnine

Guest
What is the name of your state?What is the name of your state? New Jersey

Let's say you have an original piece of art that depicts the likeness of a celebrity, not an actual photo, but your original art.

If this art were printed on a tshirt as part of a design and sold for profit, how does this breakdown in terms of infringement and / or liscencing?

Could you sell this shirt and claim to be the copyright holder because it is an original piece of art ? - or do you need to get permission from whomever controls the likeness rights?
 


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J. Michael

Guest
(Unless copying a photo you don't have a right to, this is not even a copyright matter.)

Regarding publicity rights, it depends how transformative the art is. The First Amendment usually protects caricatures.

"June 3, 2003 -- The California Supreme Court yesterday rejected on First Amendment grounds a claim brought by two musicians who were caricatured in comic books published by DC Comics. The court said the entertainers, brothers Johnny and Edgar Winter, could not claim that publication of the "villainous half-worm, half-human" characters in the drawings violated their publicity rights under California law." Comic book caricatures protected by First Amendment

However, one should be careful regarding other uses:
Supreme Court rules Three Stooges T-shirts are not protected art

Of course those rulings don't apply in NJ. All states are different. Publicity rights in CA are effective something like 100 years beyond the author. In TX, 60. In FL, 40. In Virginia, only 20. Some states may not even recognize publicity rights, or may differ in scope. You would need to check NJ state statutes and rulings.
 
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JETX

Senior Member
I just LOVE the response you got about caricature use... since there is NOTHING in your post to even suggest that your art is caricatures!!! What some people dream up just to try to respond to a thread is astounding!!

So, with that, lets get you an ACCURATE response:

sharpnine said:
Could you sell this shirt and claim to be the copyright holder because it is an original piece of art ? - or do you need to get permission from whomever controls the likeness rights?
No.
Yes.

The bottom line is that a person has the right to restrict commercial use of their 'likeness' without their permission. Though it sounds to contradict its title, this is called the 'right to publicity', which really means that a party has a right to determine who and how they are 'publicized'.
For more on this, go to: http://www.ncsl.org/programs/lis/privacy/publicity04.htm
 
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J. Michael

Guest
sharpnine didn't say that it was not a caricature, or an otherwise transformative art. Obviously YOU wouldn't post such info. Someone curious about transformative art may be reading this thread too. sharpnine should ask a licensed NJ lawyer, not you. If sharpnine were talking about Thomas Jefferson, it would not matter anyway.

Quote:
Originally Posted by sharpnine
Could you sell this shirt and claim to be the copyright holder because it is an original piece of art ? - or do you need to get permission from whomever controls the likeness rights?

No.
Yes.
Wrong. sharpnine would have a copyright in the art regardless of whether or not publishing it would violate any state's publicity/privacy rights.
 
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Easychair

Guest
recent Tiger woods case

An artist was recently sued by Tiger Woods for doing a painting of the golfer on the golf course and selling prints. He even titled the work, "Tiger Woods." The court found that the artist was not infringing on the trademark and was found not guilty. Search yahoo or google with key words, art, Tiger Woods, and trademark for reports on the case.

In any event, use a disclaimer on your product that says it is not endorsed by the individual.
 

JETX

Senior Member
Easychair said:
An artist was recently sued by Tiger Woods for doing a painting of the golfer on the golf course and selling prints. He even titled the work, "Tiger Woods." The court found that the artist was not infringing on the trademark and was found not guilty. Search yahoo or google with key words, art, Tiger Woods, and trademark for reports on the case.

In any event, use a disclaimer on your product that says it is not endorsed by the individual.
And of course, none of that applies in this circumstance. The relevant issue (that brought the dismissal of the case) was NOT the artwork itself.
"The Ohio federal court rejected Wood's argument that the print was "merely sports merchandise" unworthy of First Amendment protection. Instead, the court found that the print sought to convey a message, and that message was a unique expression of an idea, rather than the mere copying of an image. Accordingly, the court decided that the print was protected by the First Amendment, and dismissed the case."

If the original writer wants to research this matter more, I suggest reading the information at:
http://library.lp.findlaw.com/articles/file/00053/009322/title/Subject/topic/Torts/ Personal Injury_Invasion of Privacy/filename/tortspersonalinjury_2_6203

And if the writer wants to proceed with making this 'product' be sure to set a high enough price to be able to afford a good attorney as the 'celebrity' may have the funds to make it VERY expensive on you.... even if the case may be dismissed later.
 
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J. Michael

Guest
"And if the writer wants to proceed with making this 'product' be sure to set a high enough price to be able to afford a good attorney as the 'celebrity' may have the funds to make it VERY expensive on you.... even if the case may be dismissed later."
No argument. As well as overpaid, many celebrities are greedy, childish and egomaniacal. That's a dangerous combination. But if all sharpnine wants to do is set up a T-shirt stand in a NJ mall, and NJ common law permits it, then who cares?
 

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