Legal Question in Business Law in Hawaii

I am creating an online hammock store where I sell hammocks designed and styled after popular personality types in latin american history (ie; the dictator, the revolutionary, etc...) I'd like to have a section on the product page titled "Famous Revolutionaries" , "Famous Dictators" "Famous Gringo's" that includes an original sketch (that I paid to have created) and a short bio of a few of these characters (Che Guevarra, Pablo Escobar, Theodore Roosevelt, etc...)

Is this legal? Or, would I somehow need permission from this person or their estate?

I will NOT claim that the historical figure would have used or recommended my product. I am NOT naming any of the hammocks after these people. Most of these figures are dead--not alive. Some of the figures were Americans, several were foreigners. This is a retail website so I'll be selling in every state and possibly internationally. My business is an LLC. The pictures I'll use are originals which I paid an artist to create. I will feature these bios likely on the same page where I'm selling the item.

Please let me know if this infringes some sort of copyright or other law. And also if I should make any disclaimers in order to protect me. website--which is still under development-- is

Asked on 9/01/10, 2:26 am

2 Answers from Attorneys

Jon Zahaby Tour bus, scenic and sightseeing, operation

This is actually a widely debated question without a real bright line answer. Rights-of-publicity laws typically permit damages if a person's name, photograph or likeness is used for commercial purposes without the person's consent. Some states, including California, extend these rights to heirs and others (the person's ESTATE).

However an artistic creation seeking to express a message does not usually violate the person's rights and some courts have found that the fact that it is sold is irrelevant to the

determination of whether it receives First Amendment protection. Making sure the work is protected by the First Amendment because it contains significant elements beyond just the

celebrity's likeness or because the value of the work does not derive primarily from the celebrity's fame. So emphasizing the political statements on the shirts and or making parody of the images is great protection against lawsuit for use without consent. Also, having the artist copyright the paintings separately will help.

Of course, getting consent is always your best bet but if you get a NO then you have opened up a new can of worms. Aloha, Jon A. Zahaby

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Answered on 9/06/10, 11:33 am
Kevin B. Murphy Franchise Foundations, APC

The other attorney is right on point. I only add that you should protect your lazybandito brand as a registered trademark. Consult with a good trademark attorney in your area for specific advice.

Kevin B. Murphy, B.S., M.B.A., J.D. - Mr. Franchise

Franchise Attorney

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Answered on 9/07/10, 2:51 pm

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