Copyright and Misappropriation of Likeness
An image on Twitter using an iconic Superbowl image of Len Dawson, smoking a cigarette and drinking a Fresca created buzz for the KC Chiefs community. In the image, circulating around Twitter, Patrick Mahomes’ image was superimposed over the original photo by a local social media artist. Some of the issues raised by the commercial use of the image involve misappropriation of likeness and copyright infringement.
Creating art based on copying another original image is not new. Andy Warhol was one of the first appropriation artists, famously creating images based on other’s images of Marilyn Monroe and Campbell’s Soup cans. Today, misappropriation artists often create modified images for use as memes on social media. Because use on social media is typically non-commercial these uses often fall outside of the protection of copyright law as a fair use. For example, Richard Prince, a misappropriation artist creates artwork by copy images off Instagram and then transforming them such that they were entitled to protection as new, independent works of art which he then resells to others for as much as a hundred thousand dollars ($100,000).
Misappropriation of Likeness
In Missouri, Misappropriation of likeness occurs when someone uses your name, likeness, or identity, commercially without permission and the use results in a commercial benefit to the unauthorized party. In the case of the Len Dawson image, the photo has become iconic with Len Dawson. Certainly one may argue that the image convey’s Dawson’s likeness even with Patrick Mahomes’ image superimposed over the top. The fact the the modified image was sold by a local clothing company on shirts, without permission from Dawson may be problematic. Then again, Missouri may look to the predominant use of the likeness and determine that the use is not actionable because it’s primarily purpose is to promote the T-shirts to fans of Mahomes, Dawson and the Chiefs.
Copyright Infringement
Copyright infringement involves copying another’s work and may be actionable even if the original work was changed or modified. In many cases of copyright infringement of a photograph, slight changes or modifications are made to the original work. These changes; however, can still create liability for copyright infringement if the amount of copying amounts to misappropriation. On the other hand, if the changes are transformative, the may be able to avoid liability.
In the case of the T-shirt with Mahomes’ image from the Len Dawson photograph, the modified image was printed on apparel and then sold by a local clothing company.
The Intersection of Copyright and Misappropriation of Likeness
Often, cases involving copyright and misappropriation of likeness overlap. For instance, a photographer may own the copyright to an image of a celebrity, but using that image for commercial purposes without the celebrity’s permission could constitute misappropriation of likeness.
Legal Implications and Remedies
Violations of copyright and misappropriation of likeness can lead to serious legal consequences:
- Monetary damages
- Injunctive relief
- Statutory damages in copyright cases
- Attorneys Fees
Protecting Your Rights
To safeguard your intellectual property and personal image:
- Register your works of art with the U.S. Copyright Office
- Use watermarks or other identifiers on your digital content
- Monitor the internet for unauthorized use of your artwork or likeness
- Consider trademark protection if your likeness also functions as a brand
Recent Developments in Copyright and Misappropriation of Likeness
The legal landscape surrounding copyright and misappropriation of likeness is constantly evolving, especially with the rise of social media and AI-generated content. The modern right of publicity was first identified as such in a 1953 case called Haelen Laboratories vs. Topps Chewing Gum, Inc. Prior to Haelen, the courts rulings focused on privacy issues and avoiding harm to the individuals. However, in Haelen, the court pointed out that celebrities, namely baseball players, had a right of publicity which was not based on protecting a person’s privacy, but on leveraging their f a person’s name or likeness and preventing its unauthorized use. More recent court decisions have grappled with issues such as:
- The extent of “fair use” in the digital age
- The rights of individuals in user-generated content
- The application of right of publicity laws to virtual influencers
Case Study: Celebrity Image Misuse
In a recent high-profile case, Scarlett Johansson and Tom Hanks, both famous entertainers successfully stopped companies from using their images in advertisements without permission. Court have ruled that use of someones’ likeness and images can be covered by both copyright infringement (as when a company uses a copyrighted photograph) and misappropriation of likeness. This case highlights the importance of obtaining proper permissions before using someone’s image or copyrighted work.
The Role of an Experienced Intellectual Property Attorney
Navigating the complex world of copyright and misappropriation of likeness requires expert legal guidance. An experienced intellectual property attorney can:
- Assess the strength of your copyright claims
- Develop strategies to protect your personal brand and likeness
- Negotiate licensing agreements for the use of your work or image
- Represent you in litigation if your rights are violated
- Stay abreast of the latest legal developments in this rapidly changing field
Take Action to Protect Your Rights
Don’t wait until your copyright is infringed or your likeness is misappropriated. Take proactive steps to protect your intellectual property and personal brand now. At theIPCenter, our team of experienced intellectual property attorneys specializes in copyright and misappropriation of likeness cases. We’re committed to helping you safeguard your creative works and personal image in today’s digital landscape.Contact us today for a consultation. Let our expertise in copyright and misappropriation of likeness be your shield against unauthorized use and infringement. Protect what’s rightfully yours – your creativity, your image, and your legacy.