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03/23/2004: "Help with Copyright Issues (for Visual Artists)"


Recently I wrote to Cillian Murphy's agency to see if I needed permission to post paintings I did of him (from various movies he was in) on my website... but they never responded. I guess that can sort of be seen as having made a good faith effort on my part, no? I asked my lawyer friend David what the copyright implications are for doing artistic renditions of public personalities and he found a couple sections of law that kindof address it but not really: (warning, boring legalese to follow)

section 47 of fair trade states the
following:

" 47 Use for Purposes of Trade
The name, likeness, and other indicia of a person's
identity are used "for purposes of trade" under the
rule stated in 46 if they are used in advertising the
user's goods or services, or are placed on merchandise
marketed by the user, or are used in connection with
services rendered by the user. However, use "for
purposes of trade" does not ordinarily include the use
of a person's identity in news reporting, commentary,
entertainment, works of fiction or nonfiction, or in
advertising that is incidental to such uses."

Wah?

So, I'm not really using his likeness for purposes of trade, right?

He went on to say

"There is a tort called "Appropriation
of publicity" that exists at common law, and has been
codified in various states. Under that tort, a person
may sue another person for using their picture or
likeness for profit. Likeness is clearly not limited
to photos. the theory is that we each own our own
publicity rights.

However, those rights clearly yeild to the rights
protected by the first amendment. Therefore, tv and
print media, and things resembling media may freely use
the likeness of individuals (celebrities) even though
they are, Strictly Speaking, engaged in a commercial
activity. Lets face it, when People Magazine puts out
an issue with susie celeb on the cover, they are
trading on her publicity. most statutes have variously
worded exceptions for media or "cultural" uses. the
reason these exceptions are written into these statutes
is because the authors of the legislation know that
they may not tread on the first amendment.

i did not search too much, but i found no cases where
an artistic rendering of an individual was held to
appropriate that individual's right to control their
publicity. It would seem to clearly fall within the
scope of the 1st amendment.

Usually, the question turns on just how "commercial"
the use of the likeness is. is it more like a mass
production for-proffit use; or more like an artistic or
news-worthy use. Some jurisdictions require that it be
strictly a commercial use before liability will attach,
and in others, the line is less clear."

Not to mention that the actor whose likeness I was rendering, happens to be Irish, so, would their copyright laws be totoally different? And would I have to respect their country's laws, or would they have to respect ours? I'd be interested in hearing from any other artists who know rules about copyright that pertain to artists in similar situations (rights of publicity).