In general, the law does not protect artists who knowingly make false assertions of fact about another person that damage that person’s reputation or otherwise cause them harm. Further, people have rights over the use of their name, likeness, and personality. In the United States these rights are generally categorized as privacy rights and publicity rights. Another key point to remember is an individual has strong rights to protect their name, image, likeness, personality, or voice when they are used for advertising. However, artists may use another person’s image as a commentary in their art, which occurs frequently in the context of parody and satire.
When an artist creates a work that is makes false assertions about another individual, the person depicted may be able to sue the artist for defamation of character. Defamation, which includes slander (spoken defamation) and libel (written defamation/defamation in a fixed medium), is any comment that reflects negatively on a person’s character or harms his or her reputation. Under U.S. law, only comments that are presented as statements of fact can be considered defamatory; comments that are clearly expressions of the speaker’s opinion are not defamation.
There are different standards under defamation law for commentary about public and private figures. Public figures include politicians, celebrities, and any other person who has put him- or herself in the public spotlight or has greater-than-usual access to the media. They can only succeed in a claim of defamation if they can prove that the speaker made his comment knowing that it was false, or with reckless disregard to the truth of the comment – this is known as the “actual malice” standard. Actual malice can be very difficult for a public figure to prove, and public figures are rarely successful in defamation cases. Private figures, however, only have to demonstrate that the speaker acted negligently in verifying the truth of the statement.
Typically, artists have less to worry about with regard to defamation lawsuits than, for example, news reporters do. This is because in order to be defamatory, a statement must be an assertion of fact, or something that a reasonable person would interpret as a fact, and not merely the opinion of the speaker. Works of art that express an artist’s opinions and ideas about other people are less likely to be interpreted as statements of fact than news articles would be. Artists who work in parody and satire also receive protection from defamation suits, since parodic works cannot be reasonably understood as stating actual facts.
A parody is a work that imitates another work, or makes fun of an individual or entity, in order to criticize or comment on the target. Parody generally receives a high level of protection under the First Amendment, with courts recognizing that this kind of critical speech lies at the heart of free expression. In certain cases, however, courts must balance the parody artist’s free speech rights against the reputation and copyright interests of the subjects of the parody.
When work parodyies someone, defamation cases hinge on whether the statement in the parody is judged to be an assertion of fact or an opinion. Because parody as a style depends on sarcasm and deadpan delivery, courts will look at the context of the parody as well as the statements it makes to determine whether a reasonable person would think that the parody was actually offering up a factual account.
Privacy and publicity rights protect the ability of a person to control the commercial use of their image, and to prevent unauthorized or intrusive uses of their image. These rights stem from state, not federal, law, and they generally apply to advertising and merchandising. Publicity rights do not end when a person dies and may be passed to their estate.
Most controversies in this area deal with improper interference with an individual’s publicity rights. Generally, most controversies occur with respect to celebrities, since they commonly use their image and likeness for commercial benefit in films, advertisements, and endorsements. Politicians do not typically use their image to sell products, but because they are public figures, their likeness may in some cases be used on products sold by others. But artists and other people cannot use a public figure’s image completely free of limitations. When the image is used for commercial gains, courts must balance the First-Amendment rights of the artist with the public figure’s publicity rights.
To do this, courts ask whether the use of the image is for a commercial purpose. An individual’s likeness and image cannot be used to promote a product without consent. For instance, selling a t-shirt that implies the president endorses the product violates his or her publicity rights; this includes selling a t-shirt bearing the president’s image without consent. Yes, all those t-shirts sold on the street with the president’s image are technically illegal. But it is so difficult to enforce this type of publicity right that most public figures don’t bother, especially when the free publicity works in their favor. In contrast, selling a t-shirt with a caricature of the president does not violate that individual’s publicity rights because caricature includes a significant degree of original expression, along with the public figure’s likeness, and this original expression is protected by the First Amendment.
So how does a court determine whether the art is for commercial purpose? Many courts ask whether the art is transformative, or if the art is just representational. A still photo of a public figure is representational, but the caricature of the photo is transformed or substantially changed. If the court finds the art is transformative, it is probably protected. This area of case law is exceedingly gray and depends on the circumstances and context of the image. For instance, courts often take into account the medium on which the art appears: images in newspapers and magazines receive significant deference, but mugs, t-shirts and other “product” type objects are less likely to be protected.
Finally, do not confuse publicity rights with copyrights. Copyrights differ from publicity rights (and privacy rights) because they cover an artist’s intellectual property rights in the art, while publicity rights refer to the subject of the art. Thus, in the context of using an image of a celebrity, an artist must consider both the publicity rights of the celebrity, but also possibly the copyrights of the original artist who made the image in the first place. Also, copyright law is based in federal law, not state law. For more information, see the US Copyright Office page and our discussion of sampling and appropriation.