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movie character remaking as painting or sculpture

Discussion in 'Copyright, Trademark, Patent Law' started by sesam_kurt, May 9, 2009.

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  1. sesam_kurt

    sesam_kurt Law Topic Starter New Member

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    hi
    i was wondring if it is legal to sell a painting or a sculpture of a famous character or actor, on ebay?
    using an existing picture as a reference
    or pausing a movie and using it as a reference.
    i am not talking about mass production molds.
    just a single sculpture

    thank you .
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Good question. I don't want to give a complete answer here without looking into this. If you're actually copying someone else's copyrightable work then, technically, yours is derivative and subject to being infringing. That might not ever come to issue unless the item you copied, e.g. a famous sculpture, is identifiable. There is then the issue of "rights of publicity" that many states have enacted in selling items that are of a person's likeness and are derived from a person's right to privacy. While this definitely covers endorsement, it might cover an individual item. Chances are that unless that item was sold for a huge amount of money, the question of its legality might not even arise - but i can't say one way or another without looking into this.
     
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    This is what I was looking for:
    http://en.wikipedia.org/wiki/Shepard_Fairey

    Shepard Fairey created a painting of a famous picture of President Obama. He was sued by the Associated Press, which had the rights to the picture. There is a tremendous dispute over whether there is merit to this case. Regardless, the AP has money to fight it out and it's not a frivolous lawsuit.
     
  4. pshiller

    pshiller New Member

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    Ihave been in the animation art business for many years, and have always heard that an artist can create and sell a painting of a copy write character without paying any royalties. He would need licensing however if he wanted to reproduced that image and sell it as a limited edition or evn an open edition. I have always accepted this as true, and was told it was actually a grey area by the head of Warner Bros. Animation dept.
    My question is, if an artist wanted to created multiple originals for sale, each one being of his own interpretation . For example, Snoopy, when Snoopy is pretending to be the "World Famous Attorney", can these pieces be sold on the open market with any permission or royalty paid to United Syndicate, which I believe hold the copy write to Peanuts?


    Thank You.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Where did you get the notion that an artist can sell a painting that is a reproduction of another image? While there is some ambiguity as to the law, it's rather clear that if you are trying to ride on the work and goodwill of another, you'll be sued and lose via some legal theory. Even if copyright law doesn't cover the specific cartoon character, trademark law likely would. Fisher v. Star Co. concerned cartoon characters Mutt and Jeff. A lawsuit was filed alleging trademark infringement and unfair competition principles. The court found the Star Company liable for their unauthorized use of the characters.
    There is also the case of Walt Disney v. Air Pirates if you're looking for more. You can be sure you're looking for a lawsuit if you try to do what you're trying to do with regard to a famous character that is owned by a company with deep pockets.
     
  6. tobidy

    tobidy New Member

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    Hi, this topic is somewhat in the vein of what I am looking for at the moment...though I want to take the totally legal route to begin with: I am an artist looking for a contract/agreement that I can ask people to sign, so I legally right to portray them in my artwork (drawings/artwork)
    I just want to make sure nobody will come back later (or their new wife, or whatever) and complain that I used their likeness.

    Hope you can help me out

    best
    Anders Eriksen
     
  7. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Hi - I think that this is a specialized agreement and not generally available. You would want to speak to an attorney to draft for you. There are agreements that seem to fit but there may also be rights of publicity that someone would need to waive (California is one state that has greater rights of privacy laws to deal with the protection of Hollywood personalities) and you might also want these models to waive "human rights" as well. Given the sensitive nature of the subject, I would definitely not try to do this "on the cheap."
     

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