This article originally appeared in the October 2002 issue of Art World News and is here reposted with their permission, ©2002 By Art World News and Thelen Reid & Priest LLP.
The likeness of a well-known public figure is a powerful image. Just as advertisers want their products associated with the image of Michael Jordan dunking a basketball, or of Tiger Woods swinging a golf club, artists have use of these images to convey their ideas. While Andy Warhol's "Marilyn" continues to provoke debate about our celebrity-driven culture, there is no questioning his premise: celebrities are icons, and icons make for powerful images.
While advertisers use the likenesses of well-known figures to boost sales of their products, it is well established that they can not do so without their endorser's permission. The reason for that requirement is twofold. First, courts recognize a right of privacy: that is, the individual's to protect their image from use by others. Second, courts also recognize a separate right of publicity, a concept that has evolved over the last forty years from the right of privacy. The right of publicity is the antithesis of the right of privacy. It recognizes that a person's image has an economic value that is presumed to be the result of the person's own efforts and creativity, and it gives to each individual the right to exploit the value of their own image.
Artists use the likenesses of well-known individuals as a means of expressing messages within the content of their artistic creations. However, it would be disingenuous not to acknowledge that, in many cases, using the likeness of a well-known figure would likely raise the value or level of interest in a work of art. The issue this article addresses, then, is when an artist can incorporate a person's image into his or her work without running afoul of the right of publicity. Or, to phrase it another way, when can a person object to the inclusion of their image in an artist's creation?
An individual's rights of privacy and publicity in the use of their likeness are part of the laws of the various states and, as such, are not unlimited. The First Amendment to the Constitution assures freedom of speech, and, beyond any question, art is speech. Discussed below are the attempts by the courts to balance the artist's right of free speech and the subject's rights of privacy and publicity, and provide an answer to the questions raised above.
The Right of Publicity and the Human Cannonball
In 1977, the Supreme Court addressed for the first time the right of publicity doctrine in a case named Zacchini v. Scripps.1 Hugo Zacchini, a performer known as 'The Human Cannonball', would perform an act in which he was shot from a cannon and land on a net some 200 feet away. A videotape of the entire 15-second act was shown during an evening news program without Zacchini's consent. In determining that the broadcast violated Zacchini's right of publicity, the Supreme Court established two key concepts that are still in effect today. First, the Supreme Court held that each state had the power to enact right of publicity statutes that could be crafted to protect not only a person's image, but their name, voice or other singular characteristics.2 Second, The Supreme Court explained in Zacchini that First Amendment interests may override the right of publicity.
However, the Court did not fully explain how such a determination would be made. The Court did find that broadcasting his entire act had severely hurt Zacchini's economic interests, because those who saw it on television would have little incentive to pay a fee to see a live performance of the act. However, the Court also found that Zacchini's rights would not have been violated if something less than the complete act had been shown. Significantly, the Court did not indicate how much of the 15-second clip could be eliminated until the point was reached where the broadcaster's First Amendment rights would outweigh the right of publicity.
California, The Three Stooges and the 'Transformative' Test
It was the Supreme Court of California that eventually dealt directly with the difficult issue of the tension between The First Amendment's protection of an artist's use of an image and the subject's right of publicity. In Comedy III Productions, Inc. v. Saderup,3 the defendant, an artist, sold lithographs and T-shirts bearing a likeness of the Three Stooges reproduced from a charcoal drawing he had made. As an initial matter, the Court determined that because Saderup's drawing was an 'expressive' work, and not simply an advertisement or endorsement of a product, it was entitled to a higher level of First Amendment protection. Next, the Court found that celebrities have a public meaning, and that using their likeness in art helped express viewpoints or to promote debate on public issues. The Court also stated that works of art are protected by the First Amendment even when expressed through non-traditional mediums, such as T-shirts.
The Court then went on to balance the First Amendment issues against the subject's right of publicity. The Court held that depictions of celebrities "amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment".4 In other words, a mere reproduction of the celebrity's likeness, no matter how skilled, does not qualify for First Amendment protection.
However, even while acknowledging the economic impetus behind the right of publicity doctrine, the Court declined to adopt the test suggested in the Zacchini case, by which economic harm would simply be weighed against First Amendment concerns to determine if a particular use of an image was precluded by the right of publicity. Instead, the Saderup Court reasoned that the test to use in determining whether a work of art depicting a well-known figure deserves First Amendment protection is if the work is 'transformative' in nature. According to the Court, a work is transformative if, in the artwork, "a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness."5
The Saderup Court then explained its newly formulated rule by stating that to be transformative the use of the likeness by the artist must create something recognizably his own by contributing something more than a mere trivial variation to the work. Potentially adding to the confusion, the Court also observed that in determining whether a work is transformative, courts should consider whether or not the marketability and economic value of the work derives from the fame of the celebrity depicted.
By way of example, discussing Andy Warhol's work, the Court stated that through "distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond commercial exploitation of celebrity images"6 and, thus, had created works that would likely receive First Amendment protection. Conversely, the Court held that because it did not discern any " Â… significant transformative or creative contribution" in Saderup's rendition of the Three Stooges, the work was not entitled to First Amendment protection and was in violation of the California right of publicity statute.7
New York, New Rule
In Hoepker v. Kruger,8 a federal court in New York was called upon to decide whether a photograph of the plaintiff, cropped and used as part of a collage, violated her rights under the New York right of publicity statute. The court first held that a collage, like a drawing or painting, was a form of art entitled to full First Amendment protection. The court then acknowledged that under California's Saderup test, the collage was transformative enough to be afforded First Amendment protection. However, New York court refused to adopt the Saderup test, stating that courts "should not be asked to draw arbitrary lines between what may be art and what may [not be]."9
Instead, the court offered a slightly different test, requiring a determination of whether the collage had primarily a 'public interest' aspect or a 'commercial' aspect. Presumably, this means that if the importance of the collage can be found primarily in its social usefulness as a work of art, it will receive First Amendment protection. Conversely, if its primary value lies in generating sales through the popularity of the depicted celebrity, the artist may be liable for a violation of the right of publicity statute. In spite of their different emphases, both the New York and Saderup tests contain the same essential, and difficult, element: they grant or deny First Amendment protection based upon a court's determination of the artistic nature of the work.
Tiger Woods In Ohio
ETW Corp. v. Jireh Publishing, Inc.,10 is a very recent case that has provided the latest ground for the debate between the First Amendment and the right of publicity. In ETW Corp., Rick Rush, a "sports artist", created a painting sold as a limited edition print and a large edition lithograph, that featured Tiger Woods in the center in several poses, including one "displaying that awesome swing" according to the artist's accompanying text. The painting, which celebrated Woods' 1997 victory in the U.S. Open, also depicted several past winners of the tournament superimposed over the leader board in the background, a caddie and a golf scoreboard. Tiger Wood's exclusive licensing agent sued, claiming in part that the print violated Tiger Woods' right of publicity under Ohio law. The Ohio federal court rejected Wood's argument that the print was "merely sports merchandise" unworthy of First Amendment protection. Instead, the court found that the print sought to convey a message, and that message was a unique expression of an idea, rather than the mere copying of an image. Accordingly, the court decided that the print was protected by the First Amendment, and dismissed the case.
The case was appealed, and a decision by the Sixth Circuit Court of Appeals is expected soon. Belying the case's significance, the artist, Rush, is supported on appeal by briefs filed on behalf of the Newspaper Association of America, which represents over 2,000 newspapers, and by a group of over 70 law professors. Woods is supported on appeal by the estates of Frank Sinatra and Elvis Presley, the Screen Actors Guild, and the player associations for the National Football League and Major League Baseball
Where do these cases leave the artist or publisher, or their counsel, when trying to decide whether to create or sell a given work? In light of the cases, it is clear that artists do enjoy the right to use a celebrity's image as part of their artistic creations. The best that can be said is that, the more the art focuses and depends on the celebrity image, the more likely it will to run afoul of right of publicity statutes. On the other hand, the more clearly the work expresses an artistic theme and uses the celebrity image as part of that expression, the greater the comfort that the artist or publisher should have that the work is protected by the First Amendment.
- 433 U.S. 562 (1977).
- As a result, right of publicity laws vary from state to state. For example, while some states hold that the right of publicity terminates upon a person's death, at least one state allows the right of publicity to extend up to 75 years after the death of the individual. Clearly, artists must be particularly aware of the application and scope of the state statute they subject themselves to if they chose to incorporate a person's likeness into their work.
- 25 Cal. 4th 387 (2001).
- Id. at 400.
- Id. at 406.
- Id. at 408-9.
- Id. at 409.
- 200 F. Supp. 2d 340 (S.D.N.Y. 2002).
- Id. at 352.
- 99 F. Supp. 2d 829 (N.D. Ohio 2000).
*Noel Garcia, a law student at Fordham Law School and a summer associate at Thelen Reid & Priest LLP, assisted in the preparation of this article.