Depictions of Real People
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.The Basics
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.
Rights to Privacy and Publicity
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. Privacy torts protect photographs and voice recordings of an individual’s private activities and communications in ways that may constrain how those materials can be used in art without the person’s consent. Publicity rights, by contrast, 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.
Artists, particularly those who use photographs, video, or sound recording in their work, should be aware of how courts in their state respond to intrusions on privacy. Where a subject has not consented to a recording, courts may consider whether the person had a reasonable expectation of privacy. Photographs taken in public places or featuring people visible from public vantage points are generally not subject to privacy torts, but some jurisdictions allow limited rights against certain uses of “street photography” that zoom in on an identifiable person or misrepresent his or her activities. Finally, artists may be subject to tort or criminal liability for non-consensual intrusions, such as recordings made using deception, hidden surveillance equipment such as recorders or drones, or trespass into a home or private place.
Typically, a person who consents to have his or her image or likeness recorded by another is understood to have consented to later display and publication of that material for documentary or artistic purposes. However, artists should be aware of new laws against “non-consensually shared explicit images” that may test this longstanding rule for nude or sexually explicit images published without the subject’s permission. Moreover, artists may be required to secure the subject’s permission to use any consensually taken recordings for advertising or other commercial purposes, sometimes in writing, depending on the state.
If you're using another person’s image or likeness in your art, you're safest if he or she is a public figure.
Politicians, performers, and other celebrities can generally be depicted in art, but if the person is not well known, be cautious: you may need to get their permission first. Even politicians and celebrities, however, may be able to make claims based on a right of publicity.
If your art is going to be used for a commercial purpose, you'll need permission from the individuals featured in it.
Be sure that if your art is going to be used to advertise or sell something, you have contracts or agreements with any individual featured in the art for every possible use of their likeness. Approval for the use of an individual’s image in a video is not the same as a contract for the use of his image in a photo advertisement. An artist must get an individual’s approval for each form of presentation.
Find out who owns the rights to the images you use.
While a person has the right to her own likeness, another artist might own the right to the specific image or photograph that you want to use. For more on this particular issue, see our discussion of sampling and appropriation. Before you selling any merchandise with the name, image, or likeness of any public figure, be sure you understand whether you need their consent. Every state has different laws and some might be very confusing, so if you have any questions, be sure to speak with a lawyer that specializes in privacy rights for that state.
This case addressed the balance between a public figure’s right to protect his reputation and the freedom of the press to report on matters of public concern. The New York Times published an advertisement that contained a number of factually inaccurate claims about the behavior of police in Montgomery, Alabama, during the Civil Rights movement. City Commissioner L.B. Sullivan sued for defamation in Alabama state court and won. The New York Times appealed to the Supreme Court, which reversed the state court decision and held that the Alabama law was “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First . . . Amendment in a libel action brought by a public official against critics of his official conduct.” The Court considered the issue in light of the need for a robust public debate on important issues, and found that “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.“ Thus, the Court held that it is not enough for a defamatory statement merely to be false: a public official must also demonstrate that a defamatory statement was “made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
In this case, the Reverend Jerry Falwell sued the Hustler Magazine over an fake ad it published that parodied an advertising campaign for the aperitif Campari. Campari ran a series of ads with the double entendre “Do you remember your first time?” accompanied by an interview with a celebrity discussing their first taste of Campari. Hustler’s parody mimicked the Campari ad design and used a picture of Falwell alongside a fake interview that implied, among other things, that Falwell had committed incest with his mother. Hustler noted that its advertisement was a parody in small text below the ad itself, as well as in the table of contents to the magazine. Falwell sued for libel and intentional infliction of emotional distress.
The lower courts rejected Falwell’s libel claim, finding that the parody could not reasonably be understood as reporting true facts. The Supreme Court then found that, when the subject of a published statement such as the Hustler parody is a public figure, the “actual malice” standard from libel cases applies in cases involving intentional infliction of emotional distress, as well. Falwell was not permitted to recover money damages from Hustler merely because the magazine published something “outrageous” about him – the Court held that the actual malice standard was necessary to provide “breathing space” for the First Amendment, and to prevent chilling speech about those in the public eye.
It’s important to note that this case was a suit between Falwell, the public figure, and Hustler, the speaker/publisher of the parody, about the effects of the parody on Falwell’s reputation. Campari did not sue to enforce any intellectual property rights over the form of its advertisements, even though Hustler copied the format, typeface, and tag line of the Campari ads quite precisely.
Privacy and Publicity
Publicity rights are a matter of state law, and it is important to note how the law can vary among states, and what implications this may have for your art. Some states define publicity rights by statute and others rely on “common law” (the law developed by court decisions). Some states do not define publicity rights at all. For more information or to get an idea of what rules exist in your state, see rightofpublicity.com. Two states that deal with significant amounts of right-of-publicity litigation are California and New York. Both states have statutes that require an individual’s consent before using her name, likeness, or image for commercial purposes, but they differ in how and why the state protects the right.
California’s statute is based in property rights – the basic idea is that a person owns the right to use his own image, and can transfer or sell that right to other people, the way you would sell or transfer any other kind of personal property. The California statute prohibits people from using “another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.” As a property right, California extends publicity rights to the estate of the deceased. As a result, even after an individual dies, the estate can still protect the individual’s image, likeness and personality. The statute, however, does not apply when the image or likeness is used for the “news, public affairs, or sports broadcast or account, or any political campaign.”
New York’s statute is similar to California’s, but is not quite as extensive. New York also requires an individual’s consent to use her name, portrait or picture for trade (commercial) purposes. But since the statute is based in privacy rights, they are not transferrable to an estate, and once a person dies, their rights to privacy cease to exist. Thus, a deceased individual’s image, likeness, and personality can be used for commercial purposes in New York.
Zacchini was a performer whose act consisted of being shot from a cannon into a net 200 feet away. A reporter for Scripps-Howard recorded his entire act without Zacchini’s consent and aired the performance on the nightly news. Zacchini sued, contending the airing of his act was “an unlawful appropriation of his act without his consent.” The lower courts disagreed: the trial court found in favor of Scripps; the Ohio Court of Appeals reversed in favor of Zacchini; and the Ohio Supreme Court reversed the court of appeals in favor of Scripps, finding the news was of public interest. Finally, on review, the Supreme Court reversed the Ohio Supreme Court, holding that the broadcast of the entire act eroded Zacchini’s commercial incentive and economic interests.
Zacchini is particularly relevant to postings on the Internet because it illustrates some limits on the reproduction of a person’s likeness. Even news organizations can be subject to publicity rights claims.
Comedy III productions owned all the rights to the comedy act the Three Stooges. Comedy III sued artist Gary Saderup because he sold a charcoal sketch of the Three Stooges as lithographed copies and on “t-shirts bearing reproductions of the sketch.” The case went all the way to the Supreme Court of California, which applied what is now known as the transformative effects test to determine whether the work in question deserves First-Amendment protection. The key, for the state supreme court, was to determine “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” Applying this test to Saderup’s sketches, the lithographed copies, and the printed t-shirts, the Court stated that it found “no significant transformative or creative contribution.”
Comedy III is an important case because it introduced the transformative effects test, a test that some courts outside of California have also applied (see ETW v. Jireh below). Comedy III also demonstrates how subjective a court’s decision can be: the court simply stated the work was not transformative, but it did not provide any sort of clear test to define what degree of “creative contribution” will make a work transformative. As a result, artists need to be sure that, if they use any images of public figures in their art, their work contains substantial elements beyond the image.
ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003)
An artist painted a picture celebrating Tiger Woods’s victory at the 1997 Masters Tournament. The painting placed Woods in a collage with the likeness of other past victors of the tournament. The artist then sold copies of the painting. Woods’s licensing company (ETW) sued contending the painting violated his publicity rights. The district court ruled in favor of the artist. The federal Court of Appeals affirmed the district court: holding the artist did not violate Woods’s publicity rights because the artists added enough of a creative component to transform the likeness.
ETW further illustrates the varied circumstances that can define cases about publicity rights. Specifically, ETW highlights the importance of the various elements that comprise the work in question. In ETW, the court looked at the creative content of the piece, finding (1) the added content outweighed any adverse effects on Woods’ market share for his image; (2) the additional elements in the piece (e.g. the clubhouse, leader board and caddy) added to Woods’s image such that it had protection under the First Amendment; and, (3) the painting satisfied a transformative effects test because it was a “collage of images in addition to Woods’s image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods’s achievement in that event.”
Garcia v. Google, No. 12-57302 (9th Cir. 2015) (en banc)
In the famous “Innocence of Muslim” lawsuit, an actress who was manipulated into appearing in a controversial film sued Google to have the video removed from YouTube, claiming authorship rights over her individual performance allowed her to enjoin the film. After initially approving the content-takedown request, the Ninth Circuit Court of Appeals reversed its decision and released its injunction on Google, holding that “The appeal teaches a simple lesson – a weak copyright claim cannot justify censorship in the guise of authorship.”