“Being good in business is the most fascinating kind of art. Making money is art and working is art and good business is the best art.” — Andy Warhol
In the arts, copyright is the protection of tangible creative expressions, such as music, literature, sculpture, paintings, film, photography, choreography, and musicals; things that comprise an “original work of authorship” that we can see, hear, or touch. Through trademarks, copyright also covers products, names, brands, and other identity components or intellectual property that is typically of commercial nature.
What about one’s essence or persona? Can that be commercialized?
Personality rights are defined as the right of an individual to control the commercial use of his or her name, image, likeness or other aspects of one’s identity and fame. Legally, they’re treated as a combination of privacy rights, copyright and trademark, but for people.
In 1985, the Celebrity Rights Act was passed in the state of California. It extended the personality rights for a celebrity to 70 years after his or her death. Previously, personality rights ceased upon an individual’s death. Through this act, personality rights became a commodity as enforceable as copyright.
More commonly known now as Right of Publicity, the law is interpreted on a state-by-state basis in the United States. The state of Indiana extends recognition of right of publicity for 100 years after death and is considered to have the most far-reaching statute in the world, covering even signatures, photographs and gestures.
The states of Colorado and New York are the most lenient; in fact, they don’t recognize the right at all. Well, at least not for celebrities who died before the original 1985 statute. It was Marilyn Monroe who was identified in a landmark case. In 2008, a California court ruled that Marilyn’s right of publicity was not protectable in California. The court reasoned that since she lived in New York at the time of her death, her right of publicity ended upon her death.
Right of publicity lawsuits are evaluated on several criteria, including but not limited to commercial intent and whether or not an artist’s work is “sufficiently transformative,” which is open to interpretation. By lawyers.
Fair use can sometimes be a legitimate artistic defense to copyright infringement, but, typically, the First Amendment defense is the only option for right of publicity claims. Under the First Amendment, usually items of “newsworthiness” in connection with news, political, social, and economic events are considered protected speech.
While the expression of artists is protected as free speech, art is not news.