View source for The Right of Publicity: Questions from the NCN Convention

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| italic title      = The Right of Publicity: Questions from the NCN Convention<!--(Article title goes here and in the 'name' field below.)-->
| name              = The Right of Publicity: Questions from the NCN Convention
| image             = EF2009.1HemmingsKent.jpg<!--(If no good single image is suitable, use a screenshot of the first page of the article)-->
| image_size        = 260px
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| caption           = <!--(If the infobox photo needs a caption, that can be put in this field.)-->
| author            = [[Meaghan Hemmings Kent]]<!--(use {{unbulleted list|Author One|Author Two|Author Three}} to list multiple authors or subjects)--> 
| illustrator       = 
| subject           = <!--(who or what is this wiki entry about?)-->
| genre             = {{unbulleted list|[[Legal discussion]]|[[Q & A]]|[[Article]]}}<!--(acceptable genres include: Editorial, Op/Ed, Article, Interview, How-To, Member Spotlight, etc. Multiple subjects see multiple authors above)-->
| published         = [[EF Issue 2009.1]]
| pub_date          = Winter 2009<!--(Should match EF Issue Published date)-->
| media_type        = {{unbulleted list|Print|Digital}}<!--(Digital or otherwise both {{unbulleted list|Print|Digital}} )-->
| pages             = 3<!--(Page number(s) of the issue the article appears on)-->
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| notes             = ''Meaghan Hemmings Kent is an intellectual property attorney in the Washington, D.C. office of Venable
LLP. She advises clients on all areas of intellectual
property law, including copyright, trademark, patent,
trade secret, right of publicity, and domain name
law. She can be reached at 202-344-4481 and
mhkent@venable.com. The views expressed in this
article are those of the author, do not constitute legal
advice, and should not be attributed to Venable LLP or its clients.''
| website           = {{unbulleted list|[http://wiki.caricature.org/wiki/EF_PDFS/EF201?.?.pdf Full Issue PDF],|courtesy of {{URL|caricature.org}}}}
}}
Article Description. Should include author, brief description, issue number and page number(s).

==Article Transcript==
[[File:RelevantImage1.jpg|266px|thumb|right|For an image relevant to the article]]
At the 2008 NCN convention in Raleigh, I
had the privilege of speaking about Legal
Matters for the Artist, and it became clear
that the issue of the right of publicity is a
hot topic for caricature artists. The right of
publicity is, in general terms, a person’s
exclusive right to benefit from, and the right
to control the commercial use of, their name,
likeness or persona. What this legal doctrine
provides is that to use someone else’s name,
likeness or persona, in a commercial way,
you need their permission. While keeping in
mind that this is a convoluted area of the law
without clear guidelines, let’s see if we can
break it down a little by answering some of
the questions that were raised at the 2008
NCN convention.

'''What is the law of the right of publicity?'''

Unlike Copyright law, the right of publicity
is not covered by a Federal statute. Instead,
it varies from state to state. Some states
have statutes, some states rely on common
law (case law) and some states use both.
The only certain thing is that every state’s
law is different. In addition, determining
which state’s (or which country’s) law should
apply to your facts can be difficult in itself.
There are potentially three bodies of law that
can apply: where the person resides (their
permanent residence, not just where they
have a home), where the alleged unlawful
use occurred, or where the user of the image
resides.

'''What is exempt from the right of publicity?'''

Nearly every state recognizes that use
in connection with news, public affairs, sports
broadcasts, and political commentary are
protected speech that trumps the right of publicity.
However, when that use becomes commercial
(which is subjective and determined
on a case by case basis) the exemption may
no longer apply. Easy examples of commercial
use are advertising, sports memorabilia,
and products bearing a photo image sold
because of that image.

'''Is artwork exempt from the right of publicity law?'''

Generally, no. However,
there is some case law that has carved out
exceptions by finding that the artwork can
be covered as First Amendment speech.
Note, however, that this exception is not a
hard line rule because it requires a subjective
balancing of an artist’s right of expression
against a person’s right of publicity. An Ohio
case decided in 2000 involved Tiger Woods
suing an artist for using his image in prints
of a montage depicting Tiger playing at the
Masters in different poses along with images
of other great golfers. There, the artist argued
that his prints were art and were not commercial,
while Tiger argued that the prints were
sports merchandise and were commercial.
The Ohio court held that the original work
and the limited edition prints were protected
by the First Amendment because they
were a montage that conveyed a message
and were not merely posters created from
a photograph.

In a California case decided in 2001, the
estate for the Three Stooges sued an artist
who had created a charcoal drawing of the
Three Stooges and sold the image as lithographs
and on t-shirts. The California court
held against the artist stating that the image
was so lifelike that it was not “transformative”
enough to enjoy the protection of the First
Amendment. In other words, under California
law, transformative images are immunized by
the First Amendment, but images that were
too lifelike were not. The California court
went on to explain, that if a person’s image is
just raw material for original artwork and the
artistic expression is the dominant attribute of
the artwork, then the artist’s First Amendment
rights will trump the person’s right of publicity.
The California court used Andy Warhol
portraits as an example of a work where the
artist’s rights would supersede the person’s
right of publicity. This test, unfortunately, does
not provide any definite guidance because it
requires a court to make an aesthetic judgment
on a case by case basis and different
courts can reach different results.

In one 2003 California case applying this test,
the court found that the musicians John and
Edgar Winter (the Autumn Brothers) were
recognizable in a comic book but that it was
transformative because they were depicted
as half human and half worm and was therefore
protected. However, a 2003 Missouri
court found that the use of the name of a
hockey player, Tony Twist, in a comic book
was not transformative and was just a ploy to
sell more comic books. Whether a caricature,
or any artwork, is exempt from the right of
publicity law, will depend on an aesthetic
evaluation of whether it conveys a message,
whether it is “transformative,” or whether it
meets some other test that the state decides
to apply (because remember, each state has
its own law), and will require thorough review
of the particular state’s law.
Are single and original artworks exempt?
Generally, yes. Many state’s (including California)
include an exemption in their right of
publicity statutes for single and original works
of artwork. However, once copies of that
single work are made as prints, even limited
edition prints, on t-shirts, on posters, etc. then
this exemption falters and the balancing of
rights discussed above is required. For example,
in the Three Stooges case, the California
court noted that the original charcoal did
not infringe on the rights of publicity, but the
lithographs and t-shirts did.

'''Are political figures fair game?''' 

No. In
most states, the same restrictions apply to
use of a politician’s image as to any other
person. While news and political commentary
are protected speech that generally trumps
the right of publicity, commercial use of a
politician’s image will raise a red flag. For
example, Arnold Schwarzenegger and Rudy
Giuliani have both gone after people for use
of their image. Arnold targeted a bobble head
doll while Rudy threatened to sue PETA for
using his image in a mock Got Milk advertisement
(“Got prostate cancer?” related to
milk consumption allegedly being linked to
prostate cancer).

'''Are dead celebrities fair game?''' 

It depends.
Some states have posthumous rights (such
as California, Indiana, Oklahoma, Tennessee,
Florida, Kentucky, Illinois) while others
do not (New York, where Marilyn Monroe
was found to have resided). Even if a state
has posthumous rights, states vary on how
long those posthumous rights last. For
instance, in Tennessee (where Elvis resided),
posthumous rights last forever, while in California
they last for 70 years and in Florida
they last for 40 years.

'''What do I do if I want to use a person’s image in a commercial way?''' 

If you create
a work that you or another party plan to use
in a commercial way (like in an advertisement,
on products, or mass publication of
your artwork), be sure that you have permission
to use the likeness of anyone who appears
in the work. If the artwork is created for
another party, ask them to agree to defend
and indemnify you if a dispute does arise.
And don’t forget to get it all in writing!

==See Also==
* [[Relevant Wiki Link]]
* [[Relevant Wiki Link]]
==External Links==
* [http://caricature.org/join-us External Link if needed]

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