I often have these great ideas for T-shirts with celebrities’ images on the front. After the passing of Michael Jackson, everyone wanted to run out and make a commemorative T-shirt.
But every time I think about starting a great T-shirt line, I always wondered: Am I allowed to do this? Is someone going to knock on my door and send me to court for using a celebrity image on a product that I’m selling for money? I’ve done a little bit of researching, and basically what the issue boils down to is a matter of copyright, right of publicity and right of privacy. A copyright is “a form of protection provided by the laws of the United States to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic and certain other intellectual works. This protection is available to both published and unpublished works.” It basically states the ownership of a work of art belongs to the person who created it. In my example of T-shirts, the copyright comes into play when we consider the person who took the picture of the celebrity’s image I would like to use. A right of publicity is “an individual's right to control and profit from the commercial use of his/her name, likeness and persona, or the ‘individual's identity’. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual's identity for commercial purposes.” This right focuses on the celebrities themselves. While the right of publicity provides the individual with a property right in his/her identity, the right of privacy protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing or intimate or portray someone in a false light that is highly offensive. This right would center on the intention of my shirt’s message in relation to the celebrity. While copyright protects a copyright holder’s property rights in their work, privacy and publicity rights protect personal interests of the people who are represented in, or by, the work. Many people assume that public figures are public property, but this is not the case. You cannot use a celebrity image for advertising or commercial use to endorse a product or service without their permission. I may be able to create a Michael Jackson commemorative T-shirt as a positive recognition of his career, but I can’t make a T-shirt that says “Michael Jackson uses Leap Graphics’ services, and so should you!” That is against the law because it is not true. Also keep in mind that the image doesn't even have to be a celebrity's exact likeness to be considered an infringement. It can be a variation. Check out this example from medialawyer.com: 1. Vanna White; Samsung Robot: Last January, Vanna White was awarded $403,000 in damages from Samsung Electronics, because Samsung ran an ad featuring a blonde robot in a game show setting that resembled "Wheel of Fortune". Even if a celebrity is dead, his or her publicity rights may still be used. In the case of my MJ T-shirts, an unlawful use of his image on my shirts could, according to the state, still be able to be brought to court even though he has passed away. Currently, 12 states have statutes where the right of publicity survives death and they vary in how long the right survives; some states say 10 years, and some say 100. Another issue arises when you start to take images off of the Internet. A lot of content on the Internet is public domain and a lot of it is copyrighted. Sometimes, you don’t have enough information to be sure, and if you’re caught using that content without the permission of the owner, you could face legal issues. I’m not a lawyer, and like a lot of designers, I don’t want any ignorance of the law to be my downfall. Here are three rules to follow to help with any question about copyrighted material. 1. Buy stock photography – Stock sites are created so that you can purchase high-resolution images (even of celebrities) and use them for your projects without worrying about copyright issues. Be sure to read their fine print because there are certain levels of licensing that you can purchase depending upon the intended use of the photo. 2. If you find a picture on the Internet you’d like to use, ask the photographer’s (and the model if applicable) permission. – An easy way to know if you can use a particular picture is to ask. A lot of pictures are sited with who took them, and if you can get a hold of the photographer and get permission directly from their mouth, you’ll save yourself a lot of headache later on. 3. Take pictures yourself or hire someone – If you want a nice landscape picture for your next project, go outside! What did we all do before the Internet? Take your digital camera and start snapping for things such as inanimate objects, landscapes, plants/floral, crowd scenes, etc. If you need a more sophisticated shot, find a local photographer who can stage a scene for you and get his or her written permission to use the photos. That way, you know you’re covered.