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socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
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Experience:  Retired (mostly)
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I am on the Board of a co-op art show. It is a juried show

Customer Question

I am on the Board of a co-op art show. It is a juried show and artists are expected to
exhibit for sale their original art work as well as reproductions thereof. I am concerned about copyright infringement as one of our artists paints celebrities ( The Beatles, Marilyn Monroe, XXXXX XXXXXks, etc.) as well as movie characters, such as "The Joker" as they appear
in the movies. When questioned regarding written permission he answered that he
has done this for 30 years and never had a problem. Is there such a law that permits
him to do so? What are our possible consequences in allowing him to exhibit/sell his
art work as stated above.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  socrateaser replied 1 year ago.
Hello,

This issue is controlled by 1st Amendment case law, and it is frequently a "sea of storms."

What the law boils down to is whether or not an artist's work is "transformative." The "inquiry is whether the celebrity likeness is one of the `raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 406.) If the "product containing the celebrity's likeness is so transformed that it has become primarily the defendant's own expression" of what he or she is trying to create or portray, rather than the celebrity's likeness, it is protected. (Id. at pp. 406-407.)

Celebrities rarely sue over straightforward portraits, because they like the publicity .In fact they are more likely to sue over distortions of their likeness which holds them in a negative light. Ironically, the celebrity's case is far better where a portrait is simply a photo-realistic rendition of an artist, than it is where the celebrity is savaged by the artist's rendition -- because the act of disparagement, parody, editorial commentary, etc., is precisely what the 1st Amendment protects -- i.e., dissenting opinions.

From a pure legal view, if your artist is creating photo-realistic artwork, he/she could be sued. The more independently "creative" or opinionated the rendition, the more protection is afforded the artist.

That's how the law in this area is interpreted. Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33564
Experience: Retired (mostly)
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Customer: replied 1 year ago.


Additional questions:


1.We were talking about straight forward portraits. Is an artist allowed to


exhibit/sell one original (painting or mixed media) and NO reproductions


such as digital reproductions, notecards,etc.?


2.What is our organization's liability if we allow the artist to exhibit/sell


the artwork in question?


Thanks, Edith Dworak

Expert:  socrateaser replied 1 year ago.

Additional questions:


1.We were talking about straight forward portraits. Is an artist allowed to

exhibit/sell one original (painting or mixed media) and NO reproductions

such as digital reproductions, notecards,etc.?

 

A: The number of originals or copies is irrelevant. Either the work is consented to by the subject or protected under the 1st Amendment, as described in my original answer -- or not. If not, then the artist can't exhibit/sell anything.


2.What is our organization's liability if we allow the artist to exhibit/sell

the artwork in question?

 

A: If you are generating revenue, even indirectly, and even if you ultimately do not turn a profit, then you could be liable to the subject of the portrait for misappropriating the subject's likeness. Most celebrities would be unlikely to sue you, because it would make for horrible publicity. But, it's legally possible to sue you.

 

Hope this helps.

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