Copyright: Am I Stealing From Britney Spears and Christina Aquilera?

Factual Questions
1

And what the heck am I stealing, anyway?

Here’s the problem:

I have an artwork I’ve created called “Siren Slavegirls.” Basically, it shows two scantily clad slavegirls who look a lot like Christina Aquilera and Britney Spears walking through the streets of a vaguely Oriental city at dusk. The original artwork was based on thoroughly Photoshopped images of the two, but I ran into some trouble when I tried to sell it on Ebay – I’m not sure if it was copyright or what but I’m not planning to make the same mistake twice.

So now I’m in the process of thoroughly and painstakingly converting the Photoshopped images into drawings – artwork which is clearly and obviously a drawing and cannot be mistaken for a borrowed image of the two of them – though it is still recognizably them.

I can alter the image further (mainly would involve redrawing the faces a little bit) so that it is not recognizably Britney and Christina, but that would greatly alter the meaning of the work. The idea, you see, is that they’re sirens, and their singing drives men mad with desire, so they have to be gagged lest they burst out into song.

If the two characters aren’t recognizably Britney and Christina, the work loses much of its punch, as its a commentary on current culture as well as a reference to an old myth.

So the question is, if I keep Britney and Christina recognizable, am I liable for legal trouble? Or am I allowed to use them under the same general terms that allows newspapers and magazines to publish images of celebrities without their permission, even if those images are unflattering, as in editorial cartoons?

Actually, the image is pretty darned flattering, but not everybody would think so – some already don’t.

I plan to print the image on T-shirts and sell the shirts, so it’s definitely a work for profit, but it’s also legitimate commentary.

What say you, O solons of the Straight Dope. I’m not looking for legal advice, just rule of thumb stuff.

2

I am not a lawyer.
I think you will be breaking copyright (and the whole tone of your post suggest you agree…)

Some points:

  • newspapers pay photographers to take pictures of celebrities in public places. Where did you get your originals from?

  • you state the work needs to have recognisable images of two celebrities. Therefore you are trying to make money from their celebrity and need their permission.

  • ‘commentary’ it isn’t! :rolleyes: You’re trying to make money.

  • if you produce an original artwork, can I sell slightly altered copies of it without paying you royalties?!

3

Your fundamental assumption here is wrong. This is not a slightly altered copy of any photo. This has been completely redrawn by hand, with alterations in the placement of arms and legs, size and placement of breasts, changes in the garments worn, etc. etc. etc. This is not a photoshopped photo, though it’s based on one. So we have two steps here – take several photos, photoshop extensivley, then do drawing based on said photos.

My question is not about whether I can use images someone else has crated, just the extent to which they cna control the use of their images.

To answer your last question, no, but if you create your own drawing, how can I stop you?

4

As far as I know, the courts have generally ruled that, even for celebrities, the right to privacy includes the right to control over your image. That tends to be called “the right of publicity”. It’s an old case, but you might want to check out Carson v Here’s Johnny Portible Toilets. (Company made toilets using the “Here’s Johnny” catchphrase. Carson sued, it got to the 6th circuit, and they ruled

" If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used. "

Here’s an article on “right of publicity” that might help.

http://www.publaw.com/rightpriv.html

5

The issue here is not one of copyright but of trademark, a substantially different area of the law.

The courts have pretty consistently found that celebrities have control over the use of their likenesses, and that they can stop unauthorized uses.

The Author’s Guild Bulletin had an article on this in its Legal Watch column in the Fall 2003 issue, which I read about in the SFWA Bulletin, Winter 2004. I’m quoting here from that article:

So you have to decide whether your artwork would pass the “transformative” test. From your description, the answer seems to me to be “no.” I’m not lawyer, of course, but if you really plan on selling these I’d see a real lawyer at once.

6

Exapno, thanks for the comments. The cases you cite all seem to be where the celebrities’ likenesses or identities are being used to promote a product or service – toilets and whatnot – whereas my T-shirt is in fact a comment on the celebrities themselves, not a simple use of their likeness to endorse something.

My work is much more like an editorial cartoon than anything you describe.

7

I’m gonna weigh in on the opposite side of the equation, O Evil One. I think you’re in the clear, legally, and that Ebay is playing it safe to err on the side of caution.

I am not a lawyer, although I have fair amount of experience working with copyright. The bulk of my knowledge of this situation comes from dealing with ‘fair use’ practices in music, not visual art.

Copyright is not violated when the usage of the protected piece falls under what is considered ‘fair use.’ It’s crazy long, but it is referenced here, in section 107 of U.S. Code Title 17 (Copyright): Cite

Your work could be considered commentary or satire, and should be safe to use. Probably not so much were the subjects private citizens, but celebrities have somewhat less of an expectation of privacy, especially in regards to commentary, satire or newsworthiness (else the paparazzi would be out of work…) As long as your work doesn’t intend to mislead the viewer that the image is real, you should be covered from Xtina’s & Britneys attorneys on that front alone.

As regards the copyright holder of the photographs, well that’s a different matter. I cannot recall for the life of me the code that states it, but the principles that apply to music sampling and collage work should also apply here: provided that your work creates a substantially different and new piece of creative work, you should fall under acceptable use practices. Same thing as sampling, really - a small piece of otherwise protected work that is used in the creation of a different and original work is ok. There might, howver, be some statutory royalty rates applicable here, i’m not sure.

I’m expecting a call from my entertainment attorney sometime today anyway - I’ll ask him his thoughts on this. He’s far more versed in this area than I.

Cheers.

8

Celebrity’s images can be used – and even sold – if there is a satirical purpose of the image. This site clearly uses trademarked images as a basis of satire, and this uses political images in what I assume the person involved would not like.

Ultimately, it’d be up to a court to decide what is a trademark violation and what isn’t. But parody has always been protected from copyright/trademark suits – though even an unsucessful suit against you could bankrupt you.

9

Then why is it that paparazzi can freely take photographs of celebrities and sell them to be published, all without the celebrities’ permission? Why would Evil Captor’s drawing be any different than that? If Evil Captor himself took a photo of Britney, he’d be free to sell it or publish it, wouldn’t he? If he then produced a drawing from that photo, he’d be free to sell or publish the drawing, wouldn’t he? So it seems to me that the only question in his particular case is whether he has violated the copyright of the owner of the original photograph(s) by producing a drawing “based on” those photos, and has nothing to do with it being Britney’s image.

10

picker, again, the law in question here is trademark law as controlled by the Lanham Act. Nothing to do with copyright. No parallels to music, no fair use.

RealityChuck, parody is the normal defense, but that California law is remarkably strict. I don’t know whether Britney or Christina have an official residence in California to gain standing there or not, but I wouldn’t want to run afoul of it. And your first site has no living celebrities on it that I can find; just an Elvis silhouette. Political satire is a whole other category that is protected.

Roadfood, an image is different in law than a piece of created art.

Aren’t you trying to sell a product?

Todd McFarlane had the hero in the Spawn comic killed by a violent Mafioso by the name of Anthony “Tony Twist” Twistelli. Hockey player Anthony “Tony” Twist sued and won.

OutKast titled a song “Rosa Parks.” Even though her name was not used in the lyrics, an obvious reference to her was. They lost.

Another comic book, Jonah Hex: Riders of the Worm and Such, created long-white-haired, red-eyed villains known as the “Autumn Brothers.” Johnny and Edgar Winter sued and won.

If eBay has problems with celebrity likenesses, it’s probably because they’ve run into the problem before.

Talk to a lawyer.

11

I think the point here is in control of the image in play. If EC takes a picture of Britney Spears chained up and in a sexual slavery position then he’s in the clear. But if he CREATES one in a pose they could claim they would never be in (though that’s in play IMHO) then they could claim he’s damaging their trademark.

IANAL…only a humble publishing guy.

12

The distinction I’m making here is that I’m not trying to imply that Britney and Christina ENDORSE and product or service, including the product their images are printed on.

As for the people suing them and winning … so what? I understand that under our system of jurisprudence I can be sued for any number of reasons, or for no reason, and being of slender financial resources, will lose in fact if not in reality no matter what, since I can’t afford attorney fees and what not.

Which is why I’m not talking to lawyers. I basically want to know if I am walking into a sure-as-shit buzzsaw here, or if it’s a matter of happenstance. Sounds like happenstance – should Britney and Christina or their staff decide to sue me, I’m screwed no matter what. Given ALL the shit that is marketed at any given moment on Ebay which is clearly a copyright violation, I’m thinking they’re not too inclined to sue.

I’ll stay away from that “Tony Twist” guy, though. A hockey player with a lawyer. Nasty combo.

13

Given that Britney has a hit called “I’m A Slave 4U” and Christina has posed for Maxim in handcuffs and lingerie, I don’t think they’re going to be on solid grounds.

14

Except that they approved those images, and not yours. It’s a fine distinction, but that’s what our law is based on.

15

Except that we’ve already established that celebrities DON’T have absolute control of their images. Otherwise, nobody could EVER print a celebrity’s image without their express permission. As has been pointed out, the parapparazi get pictures that celebrities most decidedly do NOT approve of printed all the time. Why do I need their permission to draw them, when the photogrpahers don’t need their permission to photograph them?

16

I think you’d find that most paparazzi pix occur in public in which there’s no expectation of privacy. Even the one’s with celebs on a balcony somewhere boinking away are technically ‘in public’ and therefore allowable for image taking (of whatever form). Therefore the celebs are allowing pix to be taken and used.

Your images, however, are not of them in places where there’s a tacit admission of pix being available to be taken (if you follow a tortured sentence).

17

Well, then, why did you ask the question in the first place? Of course it’s a matter of happenstance if their lawyers see you. And of course they’ll send you a letter no matter what. I thought the problem was that eBay wouldn’t even let you put it up in the first place. So if you’re going to go ahead anyhow, why bother asking our permission?

As for the other question, that’s a non-issue too. A photograph of what happens out in the world (not a break-in of someone’s bedroom) is an image of reality and nobody owns reality. The celebrities own their own likenesses though, which you want to make money on by placing them into a non-reality you are making up. Whether you imply that they are endorsing it or not is of no legal interest.

All you seem to be asking now is, “I want to do something I know to be wrong and I just want to know what my chances are of being caught.” I thought the Dope has a policy on not asking that.

18

I wasn’t asking permission, and it’s not settled what I’ll do. I was just seeing if I could get a consensus from Dopers on the issue, which was fuzzy in my mind, to help me have a better grasp of the issues. In my experience, when it comes to copyright issues, Dopers tend to come down heavily in favor of not doing anything that might possibly offend anyone, anytime. This is probably sound advice but is somewhat limiting. I tend to take what I read here with more than a grain of salt, but there is a lot of expertise represented here and I think it’s smart to take advantage of it.

This is so weird and tenuous. Some scuzzbag photographer takes a picture of Paris Hilton’s pussy as she’s getting out of a car, and it’s all right to publish that, but I can’t draw images of Christina and Britney which are in line with their artistic works and actions? Color me dubious.

No, it’s “I want to do something I’m not sure about the legality of and I want clarification.” What I’ve done is a really nice piece of work and completely consistent with my sense of morality. I understand though, that the law is not always consistent with everyone’s sense of morality.

19

OK, then.

Your consensus is ‘It’s illegal but probably under the radar. You’ll likely get away with it but if you don’t they’ll do their best to destroy you. Good luck.’

20

Um, copyright and trademark violation aren’t really matters of offending people so much as they are matters of violating the law and suffering financial consequences.

As far as a consensus, you’ve definitely gotten one: it’s not legal. You’ve already admitted that you’re “of slender financial resources”, so you really need to think about whether this is a risk you can afford.

Hey, nobody ever said the law was consistent, and I’m not saying that I think it’s right. But it is what it is, and it does carry penalties with the full force of law.