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Caricature and the Right of Publicity

A few years ago a colleague of mine who does party caricatures in southern California was contacted by comedian Jay Leno about an ad the artist had in the local Yellow Pages. The artist had used a caricature he had done of Leno as part of his ad, and Leno took exception to that. According to the artist, Leno was quite nice about it, but made it plain he did not want to see his image used for advertising this artist’s services. Leno did not sue, but he did ask for the artist to stop using his image, and if he did not a lawsuit likely would have followed. Did the artist have the right to use Leno’s caricature, or anyone’s caricature for that matter, to advertise his services? Can a caricaturist sell copies of his caricature of Jack Nicholson or any celebrity on T-shirts at some store or over the internet? How about all those caricature prints selling daily on eBay? Each case has it’s own individual facts and facets, but the underlying law that allows public figures (or private ones, for that matter) to protect the value of their own image is called the Right of Publicity.

The Right of Publicity (ROP) is an ever evolving aspect of law that allows someone to protect the commercial use of their image, voice and persona. This applies to both the use of a person’s image or persona in a product, or it’s use in promoting the sale of another product. In the multimedia world of today, the courts are increasingly recognizing that the image, voice and persona of a person, especially that of a celebrity, has value. Similar to a copyright on intellectual property, courts have shown increasing tendency to allow for the protection of that value through the ROP.

It’s important to understand before we go further how the law works in general. Laws are not absolute, but subject to the interpretation of the courts. That is why we have lawyers who argue cases in front of judges… they are tying to sway the court’s interpretation in favor of their client. As the decisions of courts in similar cases pile up, they set precedents upon which future courts and lawyers can call and reference to bolster their arguments or influence their decisions. The ROP is a relatively new and untested area of law, and there are only a handful of precedents that apply, many of which have unique sets of circumstances that make clear precedents difficult to see. Among them are various different interpretations of ROP issues, based on the individual facts of the cases. Therefore many of the points I am going to make and discuss here have yet to get ironed out definitively in court, and the specific details of a case can make or break a decision. There are a number of court decisions that begin to define ROP, which I will reference in this article. ROP law is slowing coming into focus and it won’t be long before some landmark cases further define the parameters of the law. It’s also important to point out I am not a lawyer, and don’t even play one on TV. This article is only for informational purposes and should not be used in place of specific expert legal advice.

The ROP itself is further complicated because it is not a federal law, but instead is recognized at the state level. Each state has it’s own laws and interpretations, some via specific statutes, some under broader “right of privacy” laws and some just as common laws. As of the early part of 2005, twenty-eight states recognized the ROP in some specific form, either via statute or common law. Not surprisingly, the three states that have the most specific and aggressive ROP laws are the big entertainment states of California, New York and Tennessee (because of Nashville and specifically Elvis Presley‘s estate in Memphis, which is an industry unto itself). California especially has focused on ROP law, as the ROP is basically a celebrity issue… after all, how much value does Joe Blow’s image really have? A celebrity’s image has definable and tangent commercial value. Many of the cases I’ll be citing have taken place in California, at the supreme court level no less. A case that would get considerable attention in California might not raise any dust in another state, but as more and more ROP cases surface in various states, more specific laws and statutes will be required and will surface.

ROP versus the First Amendment

It’s not too hard to understand that selling T-shirts with a portrait of Brad Pitt on it would probably be on the losing end of a ROP suit, but what about a caricature? After all, isn’t a caricature by definition satire? Doesn’t the first amendment protect our right to free speech, and our ability to make fun of someone or something? Yes and no. The first amendment does allow us free speech, but it doesn’t mean we can tread on the rights of others in doing so. It’s in the balancing of the first amendment and ROP that many of the gray areas and difficulties arise that will only be defined as more precedents are set. Is the use of a person’s image an aspect of free speech, or is it being used for a “commercial purpose” as is clearly prohibited according to statues like California’s or Florida’s. One question the courts seem to be asking themselves is if the work is “transformative”, meaning is the work substantially changed by the artist or is is purely representational. The California Supreme Court made this a principal issue in Comedy III Productions, Inc. v. Gary Saderup, Inc. (25 Cal. 4th 387, 21 P.3d 797 (2001)). In this case, a company that sold prints and T-shirts of an image of the Three Stooges was found to be violating their ROP because the work was not transformative. By “transformative” the court meant having a significant amount of artistic expression and application so that the work was more about the art than about the subject. This is certainly a problematic approach considering it requires a group of lawyers to decide what is art and what isn’t. In the case of a product like the Stooges items, it would be better served (and the point has been considered by other courts) to decide whether the popularity and saleability of an item is derived from the fame and reputation of the subject, or from the skill and artistic input of the artist. In the case of Comedy III, the items clearly sold not because of the skill of an artist, but because they depicted the Three Stooges. Conversely, in ETW Corporation v. Jireh Publishing, Inc. (99 F.Supp.2d 829 N.D.Ohio, 2000), the courts found that an artist selling limited edition art prints of Tiger Woods at the Masters did not violate his ROP as the work contained “significant transformative elements” and did not sell solely on the identity of Woods. Even given the transformative nature of caricature, it’s entirely possible that even a caricature of a celebrity can be considered as only selling because of the subject, and not the art. Certainly just giving the subject a big head and a little body would be a stretch when tying to convince a court that a significant artistic statement is being made. What about caricatures that really make fun of the celebrity and make some kind of significant statement, like one of Mel Gibson with a Hitler mustache? Certainly it is not fans of Gibson who’d want to buy that. It therefore must be a true first amendment issue, right? Not necessarily. Another issue that has been considered by several courts is not just the message delivered, but the method of delivery when considering a first amendment defense.

The Venue of Expression Consideration

It is likely that selling a product like a T-shirt with Brad Pitt’s portrait on it is a violation of his ROP. Conversely, using a picture or caricature of Brad Pitt in a news article in a newspaper is not… the courts have long held the press, publications, fine art and media as first amendment protected vehicles of free speech. Other vehicles and manners of expression are less clear. This leads to one of the main points the courts appear to be considering in ROP vs. first amendment cases: the method or vehicle of expression.

Books, newspapers, magazines, original art… these are court recognized vehicles of opinion and expression, and very well documented as protected arenas of free speech. Even though these same vehicles are sold for profit and are essentially products, the courts have set uncounted precedents protecting these recognized vehicles. In just one example, in Montana v. San Jose Mercury News, Inc., 35 U.S.P.Q.2d 1783 (Cal. Ct. App. 6th Dist. 1995), the court found that Joe Montana‘s ROP was not violated when the Mercury News sold a poster which reproduced their news story about the Super Bowl, even though it contained his picture. The court said that the Super Bowl is news worthy, and the paper had the right to promote itself by reproducing it’s articles. That’s why MAD gets away with lampooning movies, TV shows and celebrities in general… they are a published magazine and well protected by free press and speech. In several ROP cases, the venue or way that the images are provided can be a key point. Several cases have shown that even if an image passes the litmus test of having a significant artistic relevance (i.e. “transformative”) and is considered by the courts to be a bonafide expression of opinion and free speech, what that image is presented on becomes an important issue.

I interviewed Balia Celedonia, an expert in ROP law for Cowan, Leibowitz and Latman law firm a few years ago about the ROP. According to Ms. Celedonia, the venue or item that a reproduction is printed on makes a big difference in the court’s eyes. Certain items are indisputably protected by free press and free speech laws, like the afore mentioned newspapers, publications and books. Fine art is also considered, through numerous precedents, as a vehicle for personal expression and therefore first amendment protected. Some states even have specific exemptions pertaining to “single original artwork” like Washington’s Rev. Code Ann. 63.60.070(2)(a) (West 2005), which further defines an original as not having more than 5 copies, and California’s Civ. Code 3344.1(a)(2) (Deering Supp. 2005), which is limited to the images of deceased persons. Fine art prints, those done in limited numbers and with a legitimate high end print method like a glicee print, are also consider fine art, and likewise have been protected. In the Wood’s case, the fact that the prints were limited edition lithos had bearing on the decision. Had they been printed on T-shirts and coffee mugs, things might have ended up differently. Images printed on other items are likely to be considered “products”, regardless of the nature of the image (meaning even if it a definite parody of the subject). Ms. Celedonia specifically mentioned items like T-shirts, hats, mouse pads and coffee mugs as indefensible “products” and not things a court would consider a valid vehicle of free speech. Other items, like “limited” prints done from a copy machine or a personal desktop printer would also likely not receive first amendment protection. In Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996) the MLB Player’s Association sued Cardtoons over a set of cards they had produced that lampooned a number of current players. Created in the style of actual baseball cards, they featured caricatures of the subject players and made fun of their high salaries, egotism and other elements pertaining to baseball and pro sports. One of the issues considered was the use of a baseball card format as the vehicle of expression. The courts found that, although not a traditionally recognized venue of expression, the card format was a key component in the parody itself, using a recognized item like a baseball card to parody professional baseball itself was appropriate and an integral part of the parody. This was a rare exception to traditional avenues of expression and was based on the unique facts of the case. A case on the other end of the spectrum is Mutual of Omaha Ins. Co. v. Novak, 648 F. Supp. 905 (D. Neb. 1986) , aff’d 836 F.2d 397 (8th Cir. 1987) , although it involves trademark infringement and not ROP it deals with venue of expression as a key issue. A protest group was sued by Mutual of Omaha insurance over a parody of their logo that was printed on T-shirts and other items protesting their involvement in nuclear power. The shirt featured a parody of their indian head logo and the name “Mutant of Omaha”. While there were several arguments brought to bear, including the Latham Act that addresses confusion regarding whether the actual company was endorsing the product or not, one of the elements the courts pointed out was that a T-shirt is not a legitimate form of free speech expression. Even though the message was clearly a free speech criticism of a large corporation, the courts sided with Mutual of Omaha in part because the message was printed on a T-shirt. One judge vehemently disagreed, but the ruling stood. The bottom line here is that the venue of expression definitely has a bearing on the legitimacy of a first amendment defense.

There are many other factors and considerations that have been breeched in the courts. One being the afore mentioned Latham act, which considers if a celebrity’s image used in advertising or on a product may confuse people into thinking it was a licensed product or endorsed by the celebrity. Both the Wood’s case and the Cardtoon’s case involved Latham arguments. Also considered is if the ROP of the injured party should include protection from damaging a stream of income that is not a part of their main source of income. In the Wood’s case this was considered and the courts decided that Wood’s income was not being compromised significantly because he made money principally as a golfer and endorser of products, not from selling limited edition prints of himself. This is problematic also, as there is definite value in the potential of such an enterprise, and who’s to say Wood’s might not decide to start a business selling prints of himself?

Getting back to the subject of caricature, where would the courts draw the line as to parody and the first amendment and ROP? Nobody knows for sure as there is yet to be a definitive precedent on the matter, but other cases involving ROP seem to point to celebrities being able to protect the value of their images, especially in certain states. In 2004 Governator Arnold Schwarzenegger sued a company that made a bobblehead of him in a business suit with guns and bandolier over a violation of his ROP. Unfortunately that was settled out of court, but it would have gone a long way in defining a clear first amendment message involving caricature in a non-traditional venue of expression in terms of first amendment vs. ROP. I was in a bit of an on-line argument over this subject with a gentlemen who is hawking caricature images of Nascar drivers, American Idol contestants and other celebrities on T-shirts on the Internet. The images themselves are more like flattering cartoon portraits than biting caricatures, with no satire involved at all. He is convinced because of semantics like not including their actual names on the items or any team or show logos he is safe from litigation, this based on some questionable legal advice. If Nascar or Fox TV decided to go after him in a ROP case they would probably clean this guy’s clock in court. Clearly, these items only sell because they are flattering depictions of the subject and have no parody or message at all, and are printed on a mass produced item several court precedents have not recognized as a traditional medium of free speech anyway. Of course we’ll never really know until a specific case is bought to court dealing with these exact issues. He is taking a great risk and I hope he is not the person that these forthcoming precedents are set on. If you need any other evidence that this is a concern, the Internet based custom print store Cafe Press, where anyone can design and sell a line of printed products on shirts, mousepads, mugs and other products, specifically forbids anyone from selling images of celebrities including caricatures though their service. Just covering their own rear ends? Perhaps, but it’s a telling point.

As to my first mentioned friend and his Leno experience, I would like to see something like that bought to a court (not my friend, however). I believe he had the right to use the image under a fair use defense. It could be argued that a caricaturist has the right to promote his services, and the only way to do that is to demonstrate he can achieve a good likeness in caricature, and the only way to do that is to draw a person someone can recognize to determine the artist’s skill. Leno might have an argument via the fore mentioned Latham Act, as it might be argued some people would be confused he personally was endorsing the services of my friend, but a simple disclaimer could take care of that. Safer yet would be to use several celebrities in the ad instead of just one, and to avoid using a word balloon coming out of the caricature which would imply he/she was ‘speaking’ for the artist.

Ms. Celedonia advised in general that if a caricaturist is intent on selling images they have done of celebrities, they should only sell limited edition prints that are signed and numbered, preferably printed as lithos, glicees or other high quality printing method. They should not sell images on T-shirts or other products as they are almost indefensible as venues of free speech, and they should be prepared to cease and desist if contacted by a celebrity unless the artist has the time, money and determination to see in court if they are infringing on a celebrity’s ROP. Ms. Celedonia also made it clear these are just general guidelines and not to be taken as specific legal advice based on the unique circumstances of a given case.

I think the bottom line here is that caricaturists need to be careful when considering selling copies of their caricatures, as one of these days some litigious celebrity will decide to take it all the way to the courts and make an example of somebody. Personally, I refuse to sell copies of any of the caricatures on my site, and only do caricatures either as original art with no copyrights granted or sell the copyright to publications where the first amendment is well protected. Making a couple of bucks selling a print of Marilyn Monroe is not worth the potential legal entanglements. Someday soon the courts will set precedents that will apply specifically to caricature art and items that contain them, but I won’t be the artist in court arguing for those precedents to go my way.

Links used in researching this article and other resources:
Artistic Expression or Unfair Exploitation: The Right of Publicity, the First Amendment and Fair Use in Films and Fine Art, By Jason D. Sanders
Recent Developments in the Right of Publicity in the United States, By Baila H. Celedonia
Trademark Fair Use, By Baila H. Celedonia
Right of Publicity Online Resource Center

2 Responses to “Caricature and the Right of Publicity”

  1. Hiya Tom…

    This is an excellent article, and mightily generous of you. Thanks!

    One category of photo that I believe DOES live within public domain is political figures.

    I’m not entirely sure of this, and I’m certain you’ll know better.

    My understanding is that politicians and sovereigns are public domain people, and that their images may therefor be used by whomever.

    The only issues I can see here would be that if I took a photo of a politician, I would presumably own the copyright to that particular image. Which means that if you worked a caricature from my photo, you might need to get my permission for it.

    I beg your pardon in advance if this comment contains heaps of naivete.

    Lemme know if I’m on the right track.

    Blue skies
    love
    Roy

  2. Tom says:

    Roy- you are right in that, at least in the past, politicians have had a different set of rules as to ROP. It seems they have no ROP, being elected officials the use of their images is almost automatically newsworthy, and I would think the courts would look differently at protecting the value of their identity when that value is derived not from acting, sports or music but from being elected in the first place. Still, we now have more and more celebrities turned politicians, and like in the case of Schwarzenegger and the bobblehead it may be difficult for the courts to decide where the line is drawn between their self achieved fame and their elected official fame.

    As to your point about your photo: yes, you own the copyright to your photo, but I could use your photo as the basis of a caricature and then sell the copyright to my image without infringing on your copyright. I am quite sure the courts would find even a very nice and flattering caricature sufficiently transformative to be considered it’s own image, even if based on your photo. That is a copyright issue, and the courts consider how much artistic change is made to a derivitive work when ruling on such matters. If I did a very realistic rendering of your photo, however, the court might find it not transformative enough and rule I infringed on your copyright, as I was basically selling your photo in hand drawn form.

    Thanks for the comments.

 

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