At Lawrence G. Townsend, Intellectual Property Lawyer, in San Francisco, we represent people asserting their rights of publicity as well as defending such lawsuits. The right of publicity protects people from unauthorized commercial use of their “name, voice, signature, photograph, or likeness … on or in products, merchandise, or goods, or for the purposes of advertising” goods or services, without the permission of those depicted may be sued for damages and legal fees, to quote the California Civil Code.
In other words, the law protects commercial use of your persona without your permission.
But what about art?
There is tension between using a person’s likeness commercially on a product or in advertising without permission and including the likeness in a painting or photo that is considered creative art without prior authorization.
The online magazine Artsy published a helpful article about this issue, giving examples of the different ways courts have handled this question. Basically, if the use is purely commercial, involving mere merchandise, it likely is a violation of right-of-publicity laws, but if the image is used in legitimate and “transformative” artwork, constitutional protections of free speech and expression attach and defend against right-of-publicity claims.
And if the picture or photo truly constitutes art, artist can sell copies or prints without liability due to to the protections of the First Amendment freedom of expression.
The more the artist transforms in some way a person’s image or likeness, the more likely a court will protect it as expressive art. For example, the successors to the Three Stooges won a right-of-publicity case because the reproduction of the actors’ images on t-shirts for sale was a slavish copy of an unaltered photo without any new expression, meaning, or message.
Right-of-publicity cases that involve artistic use of a person’s image without permission are factually specific. If or when it ends up in court, it must be decided whether the use falls on the purely commercial side of the line, where it violates publicity rights, or on the artistic side, where the First Amendment may protect its expressive value.