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Fanart and the “Right of Publicity”

As we make progress on our second anthology, And Seek (Not) to Alter Me, a collection of queer transformative works inspired by William Shakespeare’s Much Ado About Nothing, we confronted the following question:

If artist contributors do works recognizable as performers in specific adaptations, does that present copyright issues?

To solve this, we did some research, and we thought we’d share the results with you all!

The use of likenesses of performers in original artwork doesn’t fall under copyright protections. Instead, in the United States, performers are protected by the right to publicity, which gives individuals the exclusive right to license the use of their identity for commercial purposes. This means that, for an image or likeness of a performer (or other public figure) to be used in a commercial context, either the performer needs to be the commercial originator (as in, they need to be the person selling the thing), or they need to have given their express permission.

However, there are two significant exceptions to this.

  1. Freedom of the press allows photographs of performers to be used without their permission if the image(s) in question are considered newsworthy. This is how paparazzi are able to sell images to tabloids, for example, and in general, legal precedent has favored unauthorized photographers over the privacy and publicity rights of performers.
  2. First amendment rights to artistic freedom allow artists to create transformative  works of artistic merit that include a likeness of the individual, even without permission, and to sell the original or reproductions of that work.

Obviously, the second of these is what is applicable in our case, and in the case of the majority of fanartists. The challenge is assessing what counts as “transformative.” As with fanfiction, this is a legal gray area, and there’s precedent both in favor of creators and against them. Different states have also interpreted their laws more loosely or more strictly, as have different countries. Therefore, there’s no hard and fast rule for “this is transformative enough” and “this isn’t.” 

Creators are on their most solid legal ground when they either:

  1. create a work that heavily modifies the appearance of the performer(s) depicted in a distinct artistic style (for example, doing an abstract work versus doing a photorealistic one) or
  2. sell only limited numbers of the work, in a way considered “artistic” instead of one seen as “for commercial gain.”

And again, these metrics are subjective – a major example in the case law, for example, involves an artist who did a work that featured the likeness of Tiger Woods – without permission – and then put it on T-Shirts which the artist sold. The court ruled in favor of the artist, deciding the work was transformative enough, even though the approach was clearly commercial. But in another instance, where an artist did a painting of the Three Stooges and put that on a shirt, the court ruled that the aim of the artwork had been primarily to create fiscal gain and commercial, and that the work wasn’t sufficiently transformative. It can truly go either way, with the vicissitudes of legalities, the views of the ruling judge, state and national and international law, and the individual aspects of each case.

In addition, a creator will be on much safer legal ground if they are careful not to violate any copyrights or trademarks. For example – if a creator uses a reference image taken by someone else, that reference image could be copyrighted. For a second example – if a creator makes a piece of artwork and then labels it as “Daniel Radcliffe as Harry Potter” the issue of trademark is introduced – Harry Potter and many related terms are trademarked – and could face legal challenges from multiple directions. Avoiding these pitfalls can help reduce the risk of a legal challenge.

If a creator makes a piece with a recognizable likeness on it, and sells reproductions featuring that likeness, they are potentially at risk of being sued. However, those of us in fandom know that the extent to which most celebrities pursue their right to sue people is limited. Consider how many shirts are up on sites like Redbubble with art featuring recognizable images of main characters from popular franchises. Theoretically, any of these individuals could be sued, but in practice, few have been sent cease-and-desists, much less actively taken to court. Because these individuals have chosen not to enforce their right to publicity across the board, they’re also in a weak position to start enforcing it – when a right such as right of publicity isn’t consistently enforced, applying it to specific cases can become difficult for celebrities (in a similar way to how trademarks can lapse into the public domain if a trademark holder doesn’t vigorously defend their trademark, which is how some brand names have legally entered the vernacular even though they’re technically trademarked). 

Performers are more likely to pursue legal action if the work in question damages their “brand” – for example, if it’s derogatory – or if the work in question is to be widely distributed for extensive profit (profit the performer receives no amount of, because they haven’t been involved). They’re also most likely to win a legal case if they can prove damage has been done to them – as in, if the work(s) in question have cost them jobs, opportunities, money, etc.

When considering whether to create a work that includes a likeness of a public figure, a creator should therefore consider:

  1. Do they have the permission of the public figure in question?
  2. Does the public figure have a history of pursuing legal action against creators who use their likeness?
  3. How widespread will sales of this work be, and how profitable?
  4. Is the work insulting or derogatory toward the public figure?
  5. Is the work being produced and sold in a state or country that have “right to publicity” laws?
  6. On the off chance they choose to sue, is the creator able to protect themselves?

In conclusion: there are real risks, but they are minimal for creators in the United States. If you have concerns, make sure you research intellectual property law for your area, contact an intellectual property lawyer, and/or research the celebrity you are creating artwork of to see if they have a history of vigorously protecting their rights. When in doubt, it’s safer to opt not to sell the work in question.

From the point of view of the anthology we’re working on, we’ll be advising our artists to keep in mind the “significantly transformative” aspect, both as regards “right to publicity” and copyright of reference images, and try to avoid direct representations of living actors who have portrayed these roles – because Duck Prints Press operates under the laws of the state of New York, and in New York, “right to publicity” rights end upon the death of the person in question. A photo-realistic image of a performer playing a specific role would likely be a no-go, if that performer is still alive, but otherwise – especially considering the positive light our work will portray performers in, the transformative nature of our project, and our projected scale of sales (not more than in the hundreds, we expect) – we don’t predict having any issues, even though technically we could be sued if we use a recognizable likeness of a living performer.

For those coming at this issue without our specific interests – make sure you do your research, understand your rights and the rights of the performer/celebrity, be aware that you could potentially be vulnerable, though the odds are low, and consider speaking to a lawyer if you have concerns.

Good luck, and happy creating – and selling those creations!!

DISCLAIMER 1: We are not lawyers. Nothing in this post is intended as, nor should it be interpreted as, legal advice. This post is for general information purposes, and may not be the most up-to-date information or the most relevant to your individual circumstances. If you have questions about intellectual property law, your best bet is always to consult an intellectual property lawyer.

DISCLAIMER 2: Duck Prints Press LLC is incorporated in the state of New York in the United States, and operates under the laws of the state and country. Creators in other states and other countries should supplement this information with research specific to their location. This website lists information state-by-state.

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