As you've observed, Google Answers Researchers are sometimes antsy
about providing info that might be construed as authoritative legal
advice. Please keep in mind that the material posted here is for
informational purposes, and should not be viewed as a substitute for
the services of a qualified legal professional.
I am assuming here that we're talking about laws within the United
States, but most western nations have laws similar to the ones I'm
about to discuss.
A person's right to control the use of his or her image or likeness is
called "The Right of Publicity." If you were to produce and sell a
work of art which was recognizable as the actress Angelina Jolie
(regardless of her state of dress or undress), you would be likely to
receive a missive from Ms. Jolie or her legal representatives, asking
you to cease production of the work in question. If you continued to
publish the likeness, you would probably face a lawsuit. If the
likeness portrayed Ms. Jolie as Lara Croft, you'd be in additional hot
water, since the character Lara Croft is under separate legal
protection.
Such lawsuits can be very expensive for the defendant: Dustin Hoffman
won a judgment for $3 million against Los Angeles Magazine, which had
used a computer-altered photograph of him without his permission. Of
course, sometimes these suits are not successful:
"Relying upon this right of publicity, Tiger Woods' exclusive
licensing agent, ETW Corp. ('ETW' is short for 'Eldrick 'Tiger'
Woods,' Tiger's real name), sued a sports artist for making and
selling limited edition prints of his painting depicting images of
Tiger playing golf. Tiger's agent argued that any use of Tiger's name
or likeness must be with the agent's permission. Tiger and his agent
lost, however, because the artist's right to express himself under the
First Amendment's freedom of speech trumped Tiger's right of
publicity. But free speech won't win in every case."
Carolina Arts: LEGAL Q & A - For the Arts
http://www.carolinaarts.com/1202fenno.html
"The 'right of publicity' is the inherent right of every human being
to control the commercial use of his or her identity... The right of
publicity does not protect the persona of a corporation, partnership,
institution or other similar entities; it protects only the human
identity...
In the United States, the right of publicity is largely protected by
state common or statutory law. Approximately half the states have
distinctly recognized a right of publicity. Of these, many do not
recognize the right by that name, choosing rather to protect it as
part of an individual's right of privacy...
On the federal side of the equation, if a person can establish an
aspect of his or her identity as a trademark, protection may be
provided by Federal law. The Federal Lanham Act can also provide
protection where a person's identity is used to falsely advertise a
product or designate its origin."
IP Watchdog: The Right of Publicity
http://www.ipwatchdog.com/rop.html
"The right of publicity is the right to control the commercial
exploitation of one's name, likeness and other characteristics of
identity, and it is found in the statutes or case law of most states.
In some states, the right of publicity descends upon death to the
heirs of the celebrity."
Bootleg Betty: Legal Review: The Celebrity Scare
http://www.bootlegbetty.com/reviews/ba_Response040199.htm
"Celebrities, and all of us non-celebrities, have a 'right of
publicity' under the law in most states. This is a form of privacy and
property right, and may be infringed upon when someone uses our name
or 'likeness' for their own (usually commercial) benefit without our
consent. The right of publicity is said to 'protect the celebrity's
pecuniary interest in the commercial exploitation of his identity'...
The dividing line that is used most often by the courts is one of
'endorsement.' When an artist uses the image of the celebrity to
endorse a product or the artist, the artist has usually violated the
celebrity's right of publicity, despite free speech interests in the
work... Despite the general rule that 'endorsement' is the dividing
line, a number of courts have also permitted celebrities to recover
when their literal likeness was used by the artist for commercial
purposes, even outside of advertising or promotion."
Carolina Arts: LEGAL Q & A - For the Arts
http://www.carolinaarts.com/1202fenno.html
"Heirs have been dealing with different legislation from state to
state. New York, for instance, doesn't recognize a decendant's right
to control publicity at all; Indiana, meanwhile, is the toughest by
offering 100 years of protection after death.
'There is a need for federal legislation. There is a move toward it
and it continues to build, but we're simply not there yet,' said Scott
Whiteleather, vice president of the Indianapolis-based CMG Worldwide
Inc. CMG, which licenses the rights to use celebrity images, is the
leader in protecting and marketing the names and images of deceased
personalities such as Bogart, Marilyn Monroe, Babe Ruth, James Dean,
Ingrid Bergman and Bette Davis.
Current California law requires someone who wants to use a dead
celebrity's name, voice, likeness or signature for commercial purposes
to get permission from the person's survivors. But there are potential
loopholes -- like for an artistic product that may feature the subject
but is owned by others. "
SouthCoast Today: Encore? Not without permission
http://www.s-t.com/daily/07-99/07-16-99/b04ae037.htm
In addition, even the name of a celebrity may be a registered
trademark! For example, Marilyn Monroe's name:
"CMG Worldwide is the exclusive business representative for Marilyn
Monroe. We work with companies around the world who wish to use the
name or likeness of Marilyn Monroe in any commercial fashion. The
words and the signature 'Marilyn Monroe' are trademarks owned and
protected by Marilyn Monroe, LLC. In addition, the image, name, and
voice of Marilyn Monroe is a protectable property right owned by the
Marilyn Monroe, LLC. Any use of the above, without the express written
consent of the estate is strictly prohibited."
MarilynMonroe.com
http://marilynmonroe.com/business/overview.html
Search terms used:
"right of publicity"
"celebrity" + "image"
"celebrity" + "likeness"
I hope all of this isn't too discouraging. For more details on the
legal situation, you may want to consult an attorney, who can advise
you of your state's laws related to this matter, and of the trends in
the courts' interpretations of those laws.
If anything I've said is unclear or incomplete, or if a link does not
function, please request clarification; I'll be glad to offer further
assistance before you rate my answer.
Best regards,
pinkfreud |
