Sunday Mailbag: Right of Publicity in Zimmerman Case?

Q: Have you seen the recent lawsuit against Andrew Zimmerman over copyright infringement with his painting of the Florida lawyer who prosecuted him in the Trayvon Martin case? Is that what you mean by a “right of publicity” issue?

A: The lawsuit in question is over these images:

The top is an Associated Press photo of of Florida State Attorney Angela Corey from April 2012, taken at the Trayvon Martin trial. The bottom is a painting by George Zimmerman entitled “Angie”. Just in case you have been living under a rock the last few years, Zimmerman was acquitted this past July of the murder of 17-year-old Martin. The story about the lawsuit in part:

NEW YORK – A painting by George Zimmerman of the Florida attorney who prosecuted him in the shooting death of Trayvon Martin is a copy of an Associated Press photo, a spokesman for the news agency said Friday.

A photo of the painting of prosecutor Angela Corey was posted on Twitter by Zimmerman’s brother, Robert, saying he would entertain offers for its purchase.

But the AP on Friday sent a cease-and-desist order to an attorney who has represented Zimmerman, calling on him to stop trying to sell a work that was an artistic depiction of a copyrighted photo by the news agency.

“George Zimmerman clearly directly copied an AP photo to create his painting of Florida State Attorney Angela Corey,” Paul Colford, a spokesman for the AP, said in a statement.

Read the full story here on usnews.com.

The quick answer to your question is no, this is not about Angela Corey’s right of publicity. That is about the right of a celebrity to protect the use and earning power of their image and fame. Angela Corey is publicly known because of that trial, but her image arguably has no earning power (it’s not how nor any part of how she earns a living). This lawsuit is about copyright, specifically the copyright of the photo Zimmerman used as the basis of his “painting”.

This will basically be the same sort of situation as the Shepard Fairey Obama “HOPE” image brouhaha from back in 2009. That was a real mess, which started out with Fairey suing the Associated Press for accusing him of copyright infringement for the use of one of their photographs as the basis for Fairey’s famous “HOPE” image, and ended with a settlement where neither party admitted they were wrong and Fairey paying a $25,000 fine and serving two years probation for tampering with evidence in the case. All the smoke and chaos aside, that case was mainly about the “transformative” fair use exception to copyright law.

The “transformative exception” to copyright basically says that if the source work is sufficiently “transformed” i.e. changed in unexpected or completely new ways as to become its own freestanding work, the use of a work as its basis is fair use. This is an argument often used in music copyright cases, where the ‘sampling’ of original songs are used to create new songs, often of the rap variety, and the new songs are considered “transformed” rather than “derivative” work. The exception is supposed to allow for creative expression to be unstifled. Since the Fairey case was settled, it had no impact on a transformative defense in future cases.

The term “transformative” first was applied to a copyright case in the Supreme Court case Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994). The case centered around the rap group 2 Live Crew’s use of some of the lyrics of Roy Orbison’s song “O, Pretty Woman”, in a new song. The Supreme Court found the use of the lyrics was transformative because they were used in parody, essentially to point out the absurdities of the conventional use of the term “pretty”. In the decision Justice David H. Souter wrote:

… the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Caricaturists are pretty much immune to copyright infringement cases stemming from the use of a photo as the basis of their work. It’s a given that a caricature is in and of itself “transformative” of the image it’s based on, since the entire purpose of a caricature is to exaggerate what is depicted. I’ve never heard of a case where the copyright owner of a photograph has even tried to sue a caricaturist for using their photo as reference for a caricature. That would be a tough one to win, I would think.

How much transformation is “transformative” is a tricky question, and one only a court can decide on an individual, case-by-case basis. Zimmerman’s painting reads like an editorial cartoon, and so may end up being more of a free speech issue than a transformative one. The fact that Zimmerman is considering selling prints and the original factors in. What’s really changed from the original photo? Color, obviously, but not much else. It looks almost like the photo was put through a bad PhotoShop filter. Maybe Zimmerman will set the legal world on its ear again with the first successful defense of a copyright infringement case on the basis that the artist is a lousy painter! Regardless, it’s not a right of publicity issue.

Thanks to Chelsey White 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!