Recently, I was chatting with my brother-in-law about whether or not I can sell artwork that depicts a celebrity. As an artist, it’s tempting to make an illustration of someone famous because it has a better chance of selling as merchandise. So is it legal? From what I’ve researched, it depends. Below is an excerpt from Maurice N. Ross who commented about this topic on a Legal Advice website called Avvo . He brings up some interesting points.
Words from Maurice N. Ross:
”This is actually one of the hardest questions that IP lawyers face in their practice. This is because the First Amendment rights of artists may conflcit with the rights of publicity belonging to celebrities. While many courts have held that the first amendment right of artists will prevail if the artwork is "transformative", determination of whether a work is "transformative" is often quite difficult and controversial. Andy Warhol's paintings likely would be deemed Transformative because Warhol plainly spoke with his own, unique voice when he transformed images of celebrities and/or trademarked products (Campbell's Soup Can) into his original style. However, there are many other circ*mstances where determining whether the painting is "transformative" is a much more difficult judgment call.
Let's talk practicalities, however. If you make a single painting of a celebrity and sell the painting, chances are the celebrity will not come after you. Sale of a single painting probably does not harm the celebrity's ability to exploit his image and name commercially, and the damages that the celebrity would be able to prove from your use of his image in this single painting would probably be minor. Thus, if you plan to make a single painting of a celebrity and sell it, you probably will be ok (but this is not an absolute guarantee that you will be ok).
However, if you use a celebrity's image or face to create a portrait, poster, or drawing and then you print thousands of copies of your portraint, posture or drawing for purposes of selling them to the public, there is a much higher probablility that you will be accused of violating the celebrity's right of publicity.
The bottom line is this--you should retain IP counsel before selling these paintings, disclose all the facts and circ*mstances to such IP counsel, and then make an informed determination based on advice of such counsel as to whether you should sell the photographs. But even the best IP lawyer in the world cannot guaranty that you will not get sued if you sell these paintings. Lawyers can help clients understand possibilities and probablities, but we cannot guaranty outcomes. And there is nothing you can do (other than obtaining written permission from the celebrities in the paintings) to eliminate the risk that you would be sued by the celebrities if you sell the paintings.”
