I have made drawings of celebrities, drawing their head shots from pre-existing photographs and their bodies from other pre-existing photographs. For example Paul McCartney's head (one photo) in a fire brigade's outfit (another photo). I didn't license nor own these photographs and the drawings of both the heads and the bodies are exact drawings of the photographs. Some of them are a bit funny but I wouldn't say full on parody. Furthermore, I have drawn a trademarked logo in each drawing. If I want to sell these drawings as prints, can I claim first amendment / fair use? Or am I liable for serious publicity right, trademark and copyright infringement? And can I even claim copyright for the drawings? Meaning, if someone uses these drawings on t-shirts, can I claim copyright infringement even though the drawings themselves might already contain copyright, trademark and publicity infringing elements within themselves. I've discussed this with many IP attorneys, no one seems to fully agree. Thank you
1 Answer from Attorneys
I'm not sure why no one fully agrees. You created derivative works that presumably infringe upon the photos they were taken from. It is possible however that if you were using just a small portion of several photos your work was sufficiently transformative. But I would err on the side of caution and assume you are infringing regards to copyright unless you have a proper analysis done by IP counsel.
Regards to the publicity and privacy rights issue, that is not invoked if in fact you are just selling a photo of a famous person. That is, if the product itself is the likeness or image of the famous person it would not be a violation of their right to publicity. If, however, you use the image of a famous person (or not so famous) to sell or promote a good or service then you have a problem. So I take a picture of Michael Jordon in a public place, I am free to sell. I use a picture of MJ for my bus ads to help sell my new brand of toothpaste and I will get sued.
Lastly, there can be a lot of grey area in such cases, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
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