Legalities of Sculpting Celebrities

            I’ve been wondering what the legalities are about sculpting someone famous and selling their likeness. I mean common sense says there has to be some protection of freedom of speech, which is what art is. But celebrities are the ones with the money. There is that saying; those that have the gold make the rules. Well, I’m a rebel. I figure there must be some away around that gold for someone like me who isn’t going to make anywhere near what they make and certainly be no threat to their income off of similar images, or in my case; sculpture.

            My first attempt at sculpting a famous person went rather well, but I had no plans to sell it because she is a Hungarian actress, Andrea Osvart, and not a lot of Americans even know who she is. The sculpture turned out pretty good. Not perfect. The clay was new to me and too soft, but quite frankly doing a portrait sculpture was simply pushing the envelope for me at the time. In fact it’s still hard to do, but I’m more confident about it now.

            I posted a link to the picture on her fan site on facebook. She took a look and actually wrote me a very nice note saying she was honored that I did that, and posted the picture on her fan page. And to show how nice she is, she added me to her personal facebook page. 

Andrea Osvart

            Also on another personal note, the angel pilot sculpture I did, since it was inspired by Yvonne Scio who was in Tal Bachman’s music video; She’s so High, I put a picture of that up on her fan page on facebook. She “liked” it from her personal page.

            So far things have worked out pretty well for me regarding celebrities, and yes, these two are not considered super-stars here in the US, but it shows they weren’t ruined by success, they were very nice. And I wasn’t making any money off of it, but I don’t think they would care.

            So what happens when you make money off of a celebrity’s likeness? First of all you make money and second of all you may be sued by them. I read an interesting legal paper about sports figures and sport figure sculptures and how it has worked out in the courts. You can read the whole thing here: http://www.willamette.edu/wucl/pdf/sportslaw/spring05/mcmillens.pdf

I’m going to talk about the highlights of the cases in that paper.

The basic problem always seems to be a balance between what is allowable free speech on the part of the artist, and how that affects the right of publicity for the celebrity. Right of publicity, as you might guess, is all that licensing they do of their image and name. Do you have to have their permission to make any likeness of them? From the above linked paper:

In Comedy III Prod., Inc. v. Gary Saderup, Inc., the California Supreme Court fashioned

Its own balancing test to determine when a work of art outweighs a celebrity’s right of

publicity.  When an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity. An artist depicting a celebrity must contribute something more than merely trivial variation, [but must create] something recognizably his own.

           

            This was a California case, which would apply only to California, but could be cited as an authority in your state, whatever that state might be. In this case an artist made t-shirts with the Three Stooges on them from his own drawing. The court said it wasn’t artistic enough, basically.

Cardtoons, L.C. v. Major League Baseball Players Ass.n, 95 F.3d 959 (10th Cir. 1996).

            This is a 10^th Circuit case which is above the State level, the final level before the U.S. Supreme Court, and again can be cited as an authority in your state even if you aren’t part of the 10^th Circuit, and I forget where that is. I used to know. I know I live in the 9^th Circuit which has a reputation for just making up crap as they go along, and sometimes, surprisingly, making a good decision.

            Anyway, in this case a company was making trading cards ridiculing baseball players, I guess as caricatures. The court found that the Oklahoma law protecting the right of publicity was too protecting and that society would be deprived of entertainment and social commentary, and the baseball players stood to benefit very little from it.

            Where this puts us is; if you get sued, it’s up to the Judge to decide if your art is artsy enough. And the argument that a perfect likeness takes incredible talent and time and is the highest form of art, doesn’t count. Or it may count. Each case is different. That argument hasn’t worked in the past, but it may in the future with different circumstances and different judges.

            My personal opinion: I would not sculpt other people’s artwork. For instance all the comic book heroes, at least not without permission. It’s going to be pretty hard to say you are making art that is different in a very different way when you are copying them. Duh. Secondly I don’t want to copy someone else’s artwork. Creativity isn’t copying.

            Sculpting a celebrity is different. People look up to them, or admire their talent, and/or their beauty and I don’t see what’s wrong with immortalizing that in a sculpture. I don’t stand to make nearly what they make from their talent and publicity. Even if I make a sculpture of say, Angelina Jolie, and I make 20 of them and sell each one for $2,000 (similar case in that legal paper) $40,000 is a drop in the bucket to her. She probably makes that much in 10 minutes. Quite frankly if that caught her attention and she wanted her cut, I don’t care. It is true I wouldn’t be making anything off of it if it weren’t for her fame. If she demanded I stop because she thought it was a terrible sculpture, ok, it is her likeness. I’m reasonable. That doesn’t mean everyone else is reasonable, or that being reasonable would keep me out of court. Remember a woman sued McDonald’s for spilling coffee on herself. Court sucks, you never know what will happen in court, try to avoid it.

            I’m going to go see if I can sculpt Alison Krauss. She looks like a nice person.If you don't know who Alison Krauss is, here's a video, relax and take your mind off the stinking legal system.