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Fan Art: Does Creating Artwork of a Celebrity Violate The Right of Publicity?
| Guest post by: David M. Adler |
Article Overview: “Fan art” is artwork that is based on a celebrity, character or story that was created by a Fan of that celebrity, character or story. While it often applies to art done by fans of characters from books, it also refers to art created in visual media such as collages, films sculptures or video games. In addition to traditional art media (e.g. paintings and drawings), fan art may also be incorporated into web banners, avatars, or web-based animations, as well as, posters, and artistic representations of celebrities.
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Free Download - Failure to Prosecute Infringers Will LEad to Loss of Trademark Rights By David M. Adler |
Fan Art: Does Creating Artwork of a Celebrity Violate The Right of Publicity?
The legal status of fan art in
America may be tricky due to the overlapping legal requirements of the First
Amendment to the Constitution, Copyright Law and Right of Publicity Law. When
creating fan art in the likeness of a celebrity, the specific legal issue is whether the artwork created is
transformative enough to be protected under the First Amendment and avoid
violating the celebrity's right of publicity.
No Doubt v. Activision
The recent case of No Doubt v. Activision Publishing, Inc. involved a lawsuit by the band alleging
that Activision had exceeded its contractual rights by including a feature in
the video game Band Hero that allowed
players to manipulate the No Doubt “avatars” (digital representations of the
real-life band members) in ways that were
not previously outlined in the Agreement, including allowing the band members
to perform songs that do not belong to the band. Furthermore, No Doubt argued that they were
not given the opportunity to deny Activision the rights to the use of their “likeness”
in this way before the video game was released onto the market.
The band members had entered into
a contract with Activision that granted Activision certain rights to use the No
Doubt name, likeness, songs, and logos for the purpose of creating avatars in
their videogame titled, Band Hero. Band Hero is a game that allows players to
simulate performing in a rock band with popular songs, using the digitally
created avatars of the actual band members.
activity to constitute as
“protected” under the First Amendment; furthermore that Activision’s ‘literal
reproductions of the images of the No Doubt members could not constitute a
“transformative” use sufficient enough to bring them within the protection of
the First Amendment.
There was recent case out of
California on this issue involving the band No Doubt. In that case, No Doubt
sued Activision over the use of "avatars" in the video game
"Band Hero." Although the court looked at the transformative
use/right of publicity issue, the case was ultimately decided for No Doubt and
against Activision on Breach of Contract grounds.
However, the Court did clarify
the rule: the question is which elements dominate in the work, the literal and
imitative elements or the creative elements.
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About the Author: David M. Adler RSS for David's articles - Visit David's website Click here to visit David's website   Types of legal business structures TRADEMARKS IN CYBERSPACE Startup Financing Equity What is Dilution Social Media Legal Risks Seven Ways to Maintain Social Media Marketing Legal Compliance Lawyers Top 10 Tricks for Managing IP |
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