I got this email the other day from caricaturist Mike Giblin:
I’ve been reading extensively on your blog (and other sources) about Caricature and the Right of Publicity, and though a lot of it still has my brain in knots I’m beginning to see the distinction in what’s advisable and what’s not.
My question is to do with subject matter, specifically citing your Secret Agent Man artwork as an example. I understand that by offering the illustration as original artwork AND a limited edition print run, you’ve made a solid case for the fine art angle – and as such, there are no likely legal repercussions. However in one of your posts you mentioned that there must also be some kind of ‘parody’ element to a caricature illustration (i.e. your Tiger Woods example) in order to avoid a potential call from the lawyers. In this case is it Moore’s kung fu, Pierce’s panties, Daniel’s dishevelment etc what makes this illustration more than a straightforward portrait of the various James Bond actors – or is there some other loophole that I’m overlooking?
I thought this would make a good article, as opposed to a simple Mailbag Q&A. First, let me preface this by saying that I am not a lawyer, and I don’t even play one on TV. My comments here are based on my own research into these issues, precedents set in prior court cases and advice I’ve gotten from real lawyers who know about this sort of thing. Don’t mistake anything you read in this post with real and specific legal advice.
Doing a piece of caricature art of a famous individual or a cast of a TV show or movie and then attempting to sell reproductions of that art can bring either copyright or an individual celebrity’s “right of publicity” into consideration of having been infringed upon. Copyright is the protection of the earning power of a piece of creative work or intellectual property. You cannot draw a picture of Mickey Mouse and sell it on T-shirts, that infringes on Disney’s copyrights. Right of publicity is the right of a celebrity to protect the earning power of his/her image. You can’t produce a T-shirt with a photo of Elvis Presley on it without the permission of the Presley estate (even if you had taken the photo years ago). It isn’t even necessarily about selling what you create, but more about protecting the infringed party’s rights to profit from selling something similar.
There are certain situations where you could create a piece of art featuring someone famous or containing some copyrighted material, and not be infringing on anybody’s rights. MAD does it all they time with their TV and movie parodies. It’s depends on a lot of factors including how it’s presented, where it’s presented, its content, etc. You can read this post of mine on the different issues involved, but I’m going to focus primarily on doing caricatures and selling them as prints, like the “Secret Agent Man” art I did a few years ago Mike cites as an example:
Parody is one of those “situations” where you can create something that incorporates copyrighted images and celebrity likeness and arguably not be infringing on copyrights and right or publicity. Having the ability to make fun of something without fear of legal repercussions is one of the fundamental rights we have in this country, but what constitutes “making fun of something” is very much up to interpretation. That’s why people occasionally go to court over this sort of thing.What the courts seem to look at in these cases is if there is a legitimate editorial commentary being made and if the artistic part of the equation is a significant part of the appeal of the artwork.
What constitutes some sort of editorial commentary? In the case of the Bond print, I added touches that comment on the different treatments of the character by each of the different actors. It doesn’t necessarily need to be critical, just editorializing. My theme is this piece is: here are six actors playing the same role, and here are the things they did to make their take on the role different. Some of the things I pointed out are critical, like the goofy kung fu pose of Moore, or the overwrought seriousness of Dalton, and some are statements on the franchise as a whole, like the fact that only Craig of all the Bonds ever seemed to get hurt in his fights. Enough editorializing? I don’t know.
Another factor is the value of the “art” part of it. Andy Warhol was able to do what he did as his portraits had an “art value’, meaning that his artistic vision and interpretation has a value that was independent of the subject matter. Recently caricaturist David O’Keefe created a series of “tribute” fine art prints of the casts of movies like “The Godfather” and “Caddyshack”, among others:
Artwork © David O’Keefe, www.davidokeefe.com
Artwork © David O’Keefe, www.davidokeefe.com
Editorializing? Not really. The personalities of the characters are certainly there but he’s not comparing them to other films or making some statement about the movie, the genre, the industry or any other thing that I can see. However David has created a unique look with his art, and has established a collection of this sort of fine art approach with very different subjects. He’s selling them as limited edition prints and that establishes a legitimacy as a fine art piece and not a “product” (although I see he sells them on T-shirts also… not sure how he’s getting away with that). The real question is “is the art style itself a large part of the appeal of this work, or is the subject matter all that matters?”. I’d say in David’s case, like Warhol’s, the art aspect of it is unique enough that people would want to own it to have “an O’Keefe” and not necessarily because it’s of the Godfather or whatever. David’s been selling these for a while and while I do not know if he’s heard from any of the copyright holders or celebrities depicted, you can bet some of their lawyers have seen these. He’s still selling them, so they must be okay with it.
On a much smaller scale I have established a series where I depict actors who play the same character but in different ways, which makes it a commentary on that sort of practice. I’m no O’Keefe or Warhol, but I do have some notoriety as a caricature illustrator as well as a recognizable “style” and people will buy these pieces not necessarily for the subject matter but for my art, so that could be argued if it comes to that. Plus I do have an element of parody with my prints, and that adds another layer of legal insulation.
Nothing is guaranteed, of course. One can be sued whether the lawsuit has considerable merit, no merit or some question the parties will ask the courts to decide. It is all very ambiguous. I won’t sell individual prints of many of my park style caricatures for the simple reason that I do not think they are “fine art” enough nor necessarily editorializing enough for a strong case against infringement of the subject’s right of publicity, or in the case of a cast the copyrights of a show or movie. Some do, but others do not.
I do have plans for more of this series of prints, by the way. So stay tuned for that.