Sunday Mailbag

April 25th, 2010 | Posted in Mailbag

Q: Just wondering… can a famous person take legal action against a caricature artist for using their likeness or name? I would like to post some caricature work on my blog, but I don’t know if someone could come after me legally for it. Have you ever had problems?

A: Great question, and one that I get a lot. A few years ago a college of mine in California got a call from Jay Leno‘s people because he was using a caricature of Leno in his L.A. yellow pages ad. He was asked not to do that, and although I believe he had the legal right to do it he acquiesced.

As with many of these kinds of questions, the answer is: it depends.

Celebrities earn income these days not just by singing, acting, playing sports or practicing whatever talent (if any- see: Heidi Montag, Spencer Pratt, etc.) made them celebrities in the first place. They literally turn themselves into a “brand” and market their very persona in different ways through endorsements, products and other ventures. The ability to use their likeness and persona to earn money is something they want to protect, and there are laws that help them protect those assets. This is called the right of publicity.

Laws pertaining to a celebrity’s right or publicity are varied and inconsistent because they are state level laws and not federal ones. Each state handles right of publicity differently. In some states it’s not even governed by specific laws but by common or case law, which are simply “laws” determined by the decisions of judges and court cases as opposed to those written by the state legislature or by the state executive branch. In other states there are specific laws pertaining to right of publicity. Not surprisingly, the states with the most specific and strongest right of publicity laws are the “entertainment” states of California, New York and Tennessee (i.e. Nashville and Elvis’s estate in Memphis). Basically all the right of publicity laws protect the rights of celebrities to protect the marketability of their own images and the ability to earn income from it.

I could go on and on, but this post from some time ago gives you an in depth explanation of ROP.

So, can you put caricatures of celebrities on your website without fear violating their right of publicity?

Yes, I believe you can, with a few caveats.

As a caricaturist you can display caricatures of celebrities as examples of your work because that is the only way for you to demonstrate your abilities as an artist, and a ROP argument doesn’t apply because you are in no way damaging a celebrity’s ability to profit from their likeness. The argument would go like this: You are a caricaturist. The determination of the success of your skills are in large part based on your ability to capture a likeness. You cannot demonstrate that ability unless you show samples of people who your potential clients will recognize. The only people that have that level of recognizability are celebrities. Therefore you must use celebrities in your samples. Besides all that, there is a Fair Use argument that you are making fun of the celebrity, which falls under the “fair use” parody exemption of copyright law… although right of publicity and copyrights are not exactly the same thing.

Of course to my knowledge no court has ever directly ruled on this exact scenario, so all of the above is simply conjecture.

Regardless- here are the caveats that would probably get you into trouble:

  1. You cannot imply that the celebrity is endorsing you and your work– You can have a caricature of Tom Cruise on your website to demonstrate your caricature skills, but having a word balloon coming out of his mouth saying “These caricatures are the BEST!” or anything like that (or anything at all, really) could imply Tom Cruise himself is endorsing your work. That would be a clear infringement on Cruise’s ROP, since that endorsement would be something he should be paid for. This was in part what the problem was for my colleague’s use of Jay Leno’s caricature. The way I understood it was that in the ad, Jay was the ONLY celebrity depicted, and the image was one that could have been construed as Leno “presenting” the artist or implying endorsement. My colleague would have been better served to have had several celebrity caricatures in the ad. Of course, Leno is famously an ass when it comes to caricatures of himself… for a guy who supposedly makes a living via a sense of humor he has zero about himself.
  2. Selling the Samples- This is a little more of a gray area. Under “Fair Use”, an artist should be able to do a caricature of a celebrity and sell it arguing it’s a parody and therefore a fair use issue. However what is it a parody of? The celebrity? A lot of caricatures are simply humorous portraits and there is little or no editorial commentary or parody of anything going on. This caricature of Tiger Woods for example:

It’s humorous, but is it a parody? Not really.

This one of Harrison Ford, however:

This is definitely a parody, not just of Ford but of the Indiana Jones franchise and how silly it was to try and pass off a badly aging Ford as an action hero.

There are other issues with trying to sell even something that could legitimately be called a parody image, including the medium of reproduction. That post I linked to above goes into it more in detail, but the courts see a difference in selling originals or legitimately limited edition fine art prints and selling computer prints or images on products like T-shirts, coffee mugs and mouse pads.

Regardless you don’t need to worry about if your caricatures are or are not legitimate parodies of their subjects to display them as samples… that’s only an issue if you are going to try and sell them.

Ultimately I don’t think you need be concerned with displaying celebrity caricatures on your website as long as you don’t imply celebrity endorsement or try and sell the caricatures in any way but as originals or limited edition fine art prints. I certainly have never had any problems.

Thanks to Connie Nobbe 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 and I’ll try and answer it here!

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