By Kathryn Hines and Christine Steiner

Society is consumed with celebrity. We can survey Hollywood marriages and divorces, analyze Golden Globe wardrobe choices and comment upon the latest Lindsey Lohan foible. It is not surprising that many artists have channeled this societal obsession, featuring celebrities in paintings, collages and video installations. Moreover, as we approach the anniversaries of the death dates of Elizabeth Taylor, Michael Jackson and Amy Winehouse, commemorative portraits are likely to be in high demand. But when does using a celebrity image in art infringe that celebrity’s right of publicity? It depends. While an artistic rendering of a recognizable person may be protected under the First Amendment, there are limits to this protection.

The right of publicity is a state law intellectual property right. It is a commercial tort of unfair competition if that right is infringed. It can be defined, quite simply, as the right to limit the public use of one’s name, likeness and/or identity, particularly for commercial purposes. To show infringement of the right of publicity, a plaintiff must plead and prove: (1) Validity – That plaintiff owns an enforceable right in the identity or persona of a human being; and (2) Infringement (a) That defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and (b) That defendant’s use is likely to cause damage to the commercial value of that persona.

Whether a celebrity retains the right of publicity after death (i.e., a postmortem right) is a complicated question, and the answer varies from state to state. A total of twenty (20) states recognize a postmortem right of publicity – fourteen (14) states by statute and six (6) states by common law. California, a celebrity-friendly state, recognizes a postmortem duration of seventy (70) years, see Cal. Civ. Code § 3344.1. By contrast, New York does not recognize a postmortem right at all, New York only grants the right to living celebrities. See NY CLS Civ. R § 51. Accordingly, a star’s domicile at death is significant when examining whether his or her image can be safely put to use.

Suppose I am an artist who wants to use Elizabeth Taylor’s image in a large commemorative mural. Must I secure a license from her estate or will my First Amendment right of expression trump? This question was addressed by the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc.. There, artist Rick Rush depicted golfer Tiger Woods in a painting entitled “The Masters of Augusta.” The painting is a golf-related collage, featuring one image of Woods. Woods sued Rush, asserting that the painting violated his right of publicity. Rush claimed First Amendment protection and the Sixth Circuit sympathized, reasoning that his work had “significant transformative elements” which made it less likely to interfere with the economic interest protected by Woods’ right of publicity. By contrast, in 2001, the Supreme Court of California ruled against artist Gary Saderup, who specializes in making charcoal drawings of celebrities. In that case, Comedy III Productions, Inc. v. Gary Saderup, Inc., Saderup was sued for producing lithographs and T-shirts which bore the likeness of The Three Stooges. The court held that Saderup had violated the Stooges’ publicity rights as it could discern, “no significant transformative or creative contribution.” The court went on to opine that Saderup’s:

. . . undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame. Indeed, were we to decide that Saderup’s depictions were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements.”

Thus, the state of the law seems to be that when a celebrity is the subject of a work that is wholly transformative, free expression will prevail; whereas when the work is not sufficiently transformative, publicity rights will not be outweighed by rights of free expression. This rule is extremely subjective, though, and artists would be wise to tread cautiously. For while you might envision your great homage to Elizabeth Taylor or Whitney Houston, the litigation costs may not be worth the risk.

Of course, after 70 years, Elizabeth Taylor’s image will be fair game no matter how presented, as the California statute does not extend beyond that point. (Though one could argue that Elizabeth Taylor as Cleopatra would be permissible no matter what or when, for even Cleopatra would not enjoy a postmortem right of publicity for 2000 years.) However, perhaps after 70 years, celebrity adulation will be a foregone artistic fad. Although, judging from the unprecedented success of the Elizabeth Taylor auction earlier this year and the ever growing string of reality television stars, the obsession with celebrity does not seem to ebbing anytime soon.