Kaufman's "Visions of Don Quixote"
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What do the Three Stooges, Tiger Woods, and Cheryl Tiegs have in common? All have been involved in litigation in which they
tried to limit artists' ability to use their likeness. Ironically, the results of these cases ended up expanding an artist's
right to depict celebrities without permission or the payment of royalties.
Artists who incorporate celebrities' images in their artwork, often are on the receiving end of cease-and-desist letters from
attorneys representing celebrities or their estates. The letters received state, in no uncertain terms, that the artists are
violating the celebrities' rights. They are convincing and, to the uninitiated, frightening. They usually have the desired
effect of scaring the artists receiving them to either remove the celebrity image, pull the artwork altogether, or pay a royalty.
As an attorney who represents both celebrities and artists, I have had the opportunity to explore the issue from both sides
of the equation. While in many, if not most, cases, the celebrities will be correct in their position, it is not always the
case. The right of publicity, in a simplified format, can be stated as the right of a person to control the commercial use
of his or her name or likeness. However, several exceptions have developed over the last several years. Licensing rights that
stemmed from the rights of publicity are based on a mix of laws. Unlike copyright and trademark laws, which are federal and
have a degree of uniformity, rights of publicity are based on state laws. Each state's approach can be and often is unique.
The overall effect is a patchwork quilt of laws and interpretations. Often, the results of the case against an artist will
hinge not on the art or celebrity but rather where the lawsuit has been filed.
To evaluate a right of publicity claim, one would have to look at 34 separate state laws or common law cases to determine
if there were an infringement in a particular jurisdiction. Every state's law differs greatly in scope of protection, who
is eligible to claim the right, if it is a right descendable to the celebrity's heirs, and the duration of the right. Each
state has general exceptions. For example, use of a celebrities' likeness in a news story, in regard to public affairs, in
a sports broadcast, and in a political context all can be done without permission of the celebrity.
California has an exclusion for "single and original works of art." Does this mean a single work of art that is also original,
or is the statute creating two classes of excluded works: one, a work embodied in a single manifestation; and the other, a
separate category for "original" works of art? What would a non-single yet original work be? An example might be found in
American import laws. The U.S. does not impose a tariff on imported original works of art. Under U.S. Custom's regulations,
an original work of art can be a multiple. For example, sculptures can be part of an edition of up to 10 and still be considered
an original work of art. Therefore, it is OK for an artist to paint or sculpt a one-of-a-kind of a celebrity without permission
and perhaps a small limited edition is permitted, as well. There are no cases on this, yet, but there probably will be.
Cheryl Tiegs Back in 1993, a sculptor in New York was commissioned to cast an elephant for a wildlife preservation project. To prove the
process would not be harmful to the elephant, super model Cheryl Tiegs, who was working with the environmental group on the
project, agreed to be cast to test the process. A life-size body cast of Cheryl Tiegs was made. It was brought over to Tiegs'
apartment to show her. A workman dropped something on the cast, destroying it. The sculptor sued for the loss of revenue he
anticipated from the sale of the sculptures depicting Tiegs' torso. Tiegs filed a motion to dismiss the case saying she would
not have granted the sculptor permission to sell the sculpture, and without her permission, the sculptor would have been unable
to sell the sculptures embodying her likeness. This rendered the fact that the sculpture was destroyed irrelevant as it could
never have been exploited.
The court held that, "Although a person's right of publicity is protected under New York law, it is a very significant right,
it must fall to a constitutionally protected right of freedom of speech. This includes nonverbal expression that covers works
of art such a sculptures." The court went on to state that the statute did not apply to "plaintiff's actual or intended acts,"
that "an artist may make a work of art that includes a recognizable likeness of a person without her or his written consent
and sell at least a limited number of copies thereof without violating his or her right of publicity in New York."
Tiger Woods Two years ago in Ohio, Tiger Woods tried to stop an artist from selling prints depicting his playing at the Masters. Woods
brought a claim based on trademark law and his right of publicity. The judge in this Federal court action first found that
Tiger Woods had not established his likeness as a trademark. The law set out several criteria for the establishment of the
trademark, and Tiger Woods did not satisfy them. Simply being well known and recognizable does not in and of itself create
a trademark in one's likeness. The court found that even though Tiger Woods had a legitimate trademark in his name, that did
not translate into the use of his likeness as a trademark.
