December Issue 2002
LEGAL Q & A - For the Arts
by Edward Fenno, Copyright Attorney
Question: I heard that Tiger Woods sued an artist for not paying Tiger royalties on a print the artist made of Tiger playing golf. Is that true? If so, when does an artist have to ask a celebrity's permission to photograph, paint or sell pictures of the celebrity?
Answer: It is true that Tiger sued. But he lost. Still, the question is important because celebrities, and all of us non-celebrities, have a "right of publicity" under the law in most states. This is a form of privacy and property right, and may be infringed upon when someone uses our name or "likeness" for their own (usually commercial) benefit without our consent. The right of publicity is said to "protect the celebrity's pecuniary interest in the commercial exploitation of his identity."
Relying upon this right of publicity, Tiger Woods' exclusive licensing agent, ETW Corp. ("ETW" is short for "Eldrick 'Tiger' Woods," Tiger's real name), sued a sports artist for making and selling limited edition prints of his painting depicting images of Tiger playing golf. Tiger's agent argued that any use of Tiger's name or likeness must be with the agent's permission. Tiger and his agent lost, however, because the artist's right to express himself under the First Amendment's freedom of speech trumped Tiger's right of publicity. But free speech won't win in every case.
The dividing line that is used most often by the courts is one of "endorsement." When an artist uses the image of the celebrity to endorse a product or the artist, the artist has usually violated the celebrity's right of publicity, despite free speech interests in the work. For example, in a recent case, clothing company Abercrombie & Fitch used the names and images of some surfers in its catalog without their permission. The surfers sued under the right of publicity, and won on the grounds that Abercrombie & Fitch was essentially using them to endorse and sell its clothing without their permission. The court found Abercrombie's catalog to be more a proposal for a commercial transaction than a work of art. Thus, the surfers' rights of publicity won out over the company's rights of free speech and expression.
Despite the general rule that "endorsement" is the dividing line, a number of courts have also permitted celebrities to recover when their literal likeness was used by the artist for commercial purposes, even outside of advertising or promotion. For example, the Supreme Court of California ruled last year that a man who created a lithograph of the "Three Stooges" and used it to make and sell silk-screened t-shirts violated the right of publicity of the actors who portrayed the "Three Stooges" under California's right of publicity statute. (It should be noted that the "right of publicity" is sometimes treated only as a right in the living, but California extended these rights to the heirs of the dead by statute.) The California Supreme Court found that "depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected under the First Amendment." The court then set forth the following test:
"When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain ... without adding significant expression ..." the [statutory] right of publicity is infringed.
The court also stated this test as:
"Whether a product containing a celebrity's likeness is so transformed that it has become primarily the artist's own expression rather than the celebrity's likeness."
Although the artist in the "Three Stooges" case argued that all portraiture involves creative decisions, and therefore no portrait portrays a mere literal likeness without some "transformation," the court disagreed and ruled against the artist. In addition, the court commented on the Tiger Woods decision (made by a federal court in Ohio), stating that "We disagree with the [Tiger Woods] court if its holding is taken to mean that any work of art, however much it trespasses on the right of publicity and however much it lacks additional creative elements, is categorically shielded from liability by the First Amendment."
In a somewhat similar case, the United States Supreme Court held that a television station's unauthorized videotaping and news broadcast of the entire 15 second act of the "human cannonball," performed at a local fair, violated the entertainer's right of publicity because it involved "the appropriation of the very activity by which the entertainer acquired his reputation in the first place." The Court added that "much of [the] economic value [of the entertainer's talents] lies in the right of exclusive control over the publicity given to his performance; if the public can see the act free on television, it will be less likely to pay to see it at the fair."
So, where does this leave artists in the Carolinas? The law concerning the right of publicity is not as well developed in the Carolinas as in many other parts of the country. Neither North nor South Carolina has a right of publicity statute; and although South Carolina courts have essentially recognized the right of publicity by prohibiting the "wrongful appropriation of personality," South Carolina courts have never had occasion to decide such a case. North Carolina courts have addressed the issue once, and held that a person has a right to prohibit the unauthorized use of his or her photograph "in connection with an advertisement or other commercial enterprise." In that case, a woman's photograph was used in an advertisement.
Due to the paucity of law on the subject in the Carolinas, local artists should be prepared to follow the decisions of other jurisdictions - including California. As a result, painters are likely in a better position than photographers or videographers - since paintings of people are more likely to be "transformative" than photographs or videotapes. In the "Three Stooges" case, for example, the California Supreme Court specifically noted that Andy Warhol's paintings of celebrities were sufficiently "transformative" to avoid the right of publicity, as are "works of parody or other distortion." On the other hand, the sale of photographs of people (other than to the newsmedia, who generally have additional First Amendment protection), or the sale of videotaped sporting events or similar performances may well require the permission of the personalities involved - even if not used for advertisement or other endorsement.
Edward Fenno is an intellectual property and media attorney with the law firm of Moore & Van Allen. He represents a number of artists, as well as clients in the publishing and technology industries. He is a periodic contributor to Carolina Arts on legal issues for artists. Mr. Fenno can be reached in Charleston, SC, at 843/579-7040. This article is copyright * 2002 by Moore & Van Allen, PLLC; published by permission.
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