Are you a retailer considering selling artwork or merchandise emblazoned with a celebrity's image? Depending upon just what you're selling, you may be courting legal trouble, say copyright attorneys with Florida's Daniel Law Offices.
There are two primary determining factors in whether use of a celebrity image on or in a product is allowable:
- Whether that image is deemed a unique artistic representation
- Whether that image violates a person's right of publicity
Also known as personality rights, the right of publicity essentially is an individual's right to control the commercial use of his or her name, image, likeness or other unequivocal aspects of his or her identity, such as voice or gestures. In some ways, personality rights are similar to trademark rights, except that personality rights lack federal protection. Instead, they are governed by state law, and state laws vary in their interpretations and reaches.
Several high-profile cases illustrate the differences in legal interpretations by state. In a famous 1990s Ohio case (ETW Corp v. Jireh Publishing, Inc.), representatives of golf professional Tiger Woods sued sports artist Rick Rush and his company, Jireh Publishing. At the time, Woods still was a relative newcomer to pro golf, but was generating massive publicity. Banking on Woods' growing fame, Rush created a series of 250 serigraphs and 5,000 smaller lithographs of a painting titled "The Masters of Augusta" featuring Woods in the foreground with several other golf greats in the shadows. Woods' representatives claimed sales of the painting violated Woods' trademark and right of publicity. Ultimately, though, a federal appeals court disagreed, ruling that Rush's prints merited First Amendment protection because they were neither sports merchandise nor commercial speech and thus did not violate Woods' right of publicity.
In another highly publicized and contentious case that dragged on for seven years, Marilyn Monroe LLC and its licensee, Monroe LLC, sued Milton Green Archives, Inc. and Tom Kelley Studios, Inc. in Indiana. Greene was famous in his own right as a sought-after celebrity and fashion photographer who had worked extensively with Monroe and had taken many of her most iconic photographic images. The plaintiffs claimed ownership of Monroe's right of publicity and alleged that the defendants were violating that right by using Monroe's image and likeness for commercial purposes without consent.
In the end, the courts decided in favor of the defendants - and the decision came down to an address. Though she died in Los Angeles, Monroe was officially domiciled in New York at the time of her death, which meant that New York law ultimately prevailed. California law would have allowed Monroe's right of publicity to pass to Monroe LLC via a residual clause of her will. But in New York, a person's right of publicity ends at the time of his or her death.
Multiple factors play into your right, or the lack thereof, to use a celebrity's image in products that you offer for sale. A general rule of thumb is that use and sales of your original artistic representations, such as in paintings, generally are protected under the First Amendment. But use of any likeness on merchandise such as T-shirts, coffee mugs, key chains, etc. likely will be prohibited via the celebrity's rights of publicity. In any case, your best bet is to consult an experienced trademark and copyright attorney before offering a celebrity-emblazoned product for sale. Check out Florida's statute governing unauthorized publication of name or likeness here and contact Orlando's Daniel Law Offices at 866-37PATENT to make sure a product you have in mind doesn't violate someone else's rights.