I have a seemingly simple question, but am woefully ignorant re: copyright law and would appreciate someone’s insights.
Suppose that I draw a caricature of Albert Einstein. The caricature if not based on a specific photograph; just what I’ve made up (other than his face). Am i permitted to put that image on a t-shirt and sell it? If I can sell it, am I required to pay some licensing fee to his estate b/c of likeness? Or, is my right to sell the image I created and not pay a fee simply the price of being Einstein (or pick you celebrity).
I’ve tried to read about ‘publicity rights’, etc., but couldn’t come to an answer. I’d greatly appreciate your insights.
If you draw an original, creative caricature of Einstein, you hold the copyright in that drawing and control the rights set forth in the Copyright Act.
But, yes, you are right that your ability to sell copies of that drawing might be limited by the law of publicity rights, which, unlike copyright law (which is federal law), is different in each state. Some states – such as New York, Indiana, and California – have very strong protections for the likenesses of celebrities. Some states have relatively weak or no protection.
This makes it difficult for me to state off the top of my head what the upshot of all this is. I will try to look into the question and get back to your question.
So far, it looks to me (at least under California law) that the critical issue is whether the caricature is “transformative.” In other words, the question is whether the artist made some kind of significant “creative contribution” to the depiction or whether it is merely a literal depiction. The claim that something is a satire, parody, or caricature by itself doesn’t seem to protect you.
For example, there was a case in which an artist did a charcoal drawing of the Three Stooges and put it on a T-shirt. This was found to infringe on the Three Stooges’ publicity rights because it was merely a literal depiction of their images.
However, Andy Warhol’s silk screens of people like Marilyn Monroe and Elizabeth Taylor were considered transformative and thus protected as free speech.