Depictions of real people are frequently a component of art, and the ability to reference, discuss, and critique others is a fundamental part of free expression.  The First Amendment generally protects artists’ use of depictions of real people in their art, though there are several circumstances in which the rights of the person being depicted may trump those of the artist.

Generally, a false statement about another person that reflects poorly on their character and is presented as true and factual information could be considered defamation.  The key issue is whether the negative comment is conveyed as a fact about the person, or merely as the speaker’s opinion.  Artists cannot be successfully sued for expressing their opinions about another person, and negative depictions of real people in a parody or satire are also protected when it is clear that a reasonable person could not have interpreted the parody as stating actual facts.  (For a discussion of another type of parody – involving the use of copyrighted material, please see the section on sampling and appropriation.)

The law also makes a distinction between commentary about private and public figures.  A false but damaging statement about a private figure may be defamatory if the speaker was negligent in verifying the truth of the statement, but when the person depicted is a public figure, the speaker must be acting maliciously, with the intent to harm the person, in order to be liable for defamation.

When artists create art that involves the images of public figures, another issue they face is whether they may make a profit from the other person’s image.  Everyone, including celebrities and public personalities, has the general right to control the use of his or her image for commercial exploitation.  Courts are often concerned, however, that putting limitations on the use of public figures’ images might chill the free exchange of ideas and political debate.  Courts draw the line when a public figure’s image is used to convey his support or endorsement of a product.  For example, an artist may, in general, sell a print that depicts the president, but if the print implies the president’s endorsement of a product, it would violate the president’s publicity rights.

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