An artist who creates a work that depicts or comments on an individual may be subject to a defamation suit if that individual thinks the art reflects negatively on his character or reputation. To rise to the level of defamation, the art would have to be interpreted as making a factual claim about the individual, and not merely expressing the artist’s opinion. Further, the claim must also be false; truth is a defense to defamation.
A common issue in defamation cases is whether the subject of the allegedly defamatory statement is a public figure. Public figures can include celebrities, politicians, and people who have interjected themselves into particular public controversies. A public figure who is making a defamation claim must establish that the person who made the allegedly defamatory statement did so with actual malice toward the public figure – either the person knew the statement was false, or he made it with reckless disregard of whether it was false.
This is a fairly high standard, and public figures often have a difficult time meeting it. And the more extreme a statement is, the less likely it is to constitute defamation, as the harm involved in a defamation case depends on there being damage to the defamed person’s reputation because other people believed the statement. Thus, outrageous parodies like the one at issue in Hustler Magazine v. Falwell receive full First Amendment protection, and their creators cannot be held liable for civil damages.
If the work is determined to be defamatory, the artist will probably have to pay damages. The amount of damages is determined by a jury, which can consider factors such as how serious the defamatory statements were, how much they affected the person’s reputation, and how widely the statements were distributed. Because the Internet is a global network, some courts may be willing to find that art posted online has a worldwide distribution, even if few people actually saw the art.
More information, including discussion of cases, is available in our Depictions of Real People section.