If you love to paint portraits, and love celebrities, you may have considered combining the two. It seems like an obvious subject, right? People are obsessed with sports figures and movie stars. Celebrity portraits sell easily among fans. But is it okay to sell celebrity portraits?
You should avoid selling celebrity portraits unless you have permission to do so. In most states, you have a “Right of Publicity” which prohibits anyone from selling or exploiting your name, likeness, or personal features without your consent. This “Right of Publicity” extends to celebrities, and you can be sued for violating it.
Even if you have consent, be sure to avoid replicating copyrighted reference material.
Celebrities Have Rights to Their Name and Face
Each person, including celebrities, have what’s called a “Right of Publicity.” This means you cannot exploit another person’s name or likeness without permission. Exploitation includes both public displays and selling for profit.
Creating the artwork is not a violation of the Right of Publicity. But showing the artwork or selling it is a violation because you personally gain.
The Right of Publicity is a privacy right afforded in most US states. The basic premise is that other people cannot make money off of your name or image without your consent. And it makes sense, doesn’t it? Most people agree they wouldn’t want someone else to make money on your name, face, or personal attributions.
The Right of Publicity comes up in endorsements in advertising, as well as selling products. For example, it is a clear violation to publish an advertisement for a product falsely claiming that it has been endorsed by a celebrity or anyone else for that matter.
At the same time, it is also a violation to publish a photo of someone else on a product, even an art canvas, and sell it without their permission.
Beware of Copyrighted Reference Material
So what if the celebrity really doesn’t mind? What then?
Even if the celebrity does not mind if you sell their portrait, you must still make sure that you are not violating any copyrights if you are basing your artwork on a reference photo.
An excellent example of this is the Associated Press vs. Shepard Fairy case. At the time, President Barack Obama was running for President of the United States. Obama was photographed by a photographer that was employed by the Associated Press during one of his many campaign speeches.
Along comes Shepard Fairy, a well-known street artist, who created the famous red white, and blue Obama “Hope” poster. Shepard Fairy gifted the image to Obama, who loved it so much, he used it as a campaign poster.
Obama didn’t mind that Shepard Fairy used his likeness at all. But, the Associated Press did mind. They claimed the Associated Press owned the copyright to the photograph that Shepard Fairy used in creating the artwork.
Accusations were made. Lawsuits ensued. The parties spent a lot of money on lawyers before settling the matter.
Shepard Fairy became quite famous when his Obama Hope poster went viral during the campaign. It was exactly the kind of “exposure” most artists dream of. But imagine how much heartache he would have saved himself if he had just gone to a campaign event and taken his own reference photo.
So Why Do You See So Much Celebrity Artwork?
The truth is, A LOT of art is made, publicly shown, and sold in violation of the Right of Publicity of celebrities. We see it in online shops, in art shows – even in galleries all the time
It’s no surprise – people love to display images of their favorite celebrities. It’s an easy (or easier) sell because it’s a popular subject. People are passionate about sports figures and movie stars.
Many celebrities are flattered to find out they are the subject of an artwork. But more likely than not, they never even find out. Unauthorized artworks are so prevalent, it would be impossible for most celebrities to track down and prosecute each and every unauthorized artwork.
Even if a celebrity could locate all of the unauthorized art, it would be cost-prohibitive to stop it. The cost of hiring attorneys and filing lawsuits over artwork would far exceed what most artists hope to earn unless the artist is very famous and making a LOT of money from the sale.
So there you have it – unless the artist and/or the unauthorized artwork gets very famous (like Obama Hope Poster famous) it’s very unlikely that the artist will be called out for a violation. But, why on earth would an artist want to finally strike it rich only to spend it all on attorney’s fees?
