Let’s say that you are a photographer and collage artist. In your work, you take photographs of various people and objects and splice them together in collage form with other photographs taken from magazines, newspapers, or online sources. Your work often speaks to wide scale political or pop-cultural issues, and you have been known to use celebrities’ faces or likenesses in your pieces. You’ve recently completed a collage which depicts a beautiful woman eating from a buffet; the buffet is stocked not with food but with ballistic missiles and corpses, and the beautiful woman has Donald Trump’s face. The piece is called “All You Can Eat” and is displayed at a local, prestigious gallery, listed for sale at $15,000. Within two weeks, you get a letter from Rudy Giuliani, Mr Trump’s attorney, stating that Mr Trump is suing you for copyright infringement, infringement of his right of publicity, and false light.
You call your attorney in a panic. She laughs a little, sighs a little, rubs her chin thoughtfully and says that while the threat of litigation is always serious - especially from extremely litigious persons like Mr Trump - this particular case has many defenses. Let’s break them down.
First, Mr Trump’s letter states that he owns a copyright in the image of his face because it is his face. This is false. As most photographers and creative professionals will know, the copyright is always held by the person who created the image, not the model in the image. Thus whoever took the photograph of Mr Trump that you used is the copyright owner - unless, of course, Mr Trump purchased the copyright, or hired the photographer under a work-for-hire agreement. But nowhere in the letter does Mr Giuliani claim that Mr Trump purchased the copyright, or that it was a work-for-hire; rather, he claims that Mr Trump owns the picture merely because it is his face. This is a sanctionable false statement of law.
What’s more, even if Mr Trump did own the copyright, “All You Can Eat” almost certainly falls under the “fair use” defense to copyright infringement, which is a well-known concept stating that you may use copyrighted works without infringing under certain circumstances. Here, your work is probably fair because it is an expressive piece of artwork that significantly “transforms” the original photograph, adding a new message not intended by the author. Furthermore, the collage will enjoy significant First Amendment protections because it depicts a public figure and presents a political message. The First Amendment’s key goal is to encourage citizens to learn about and comment on the public figures and political issues of their time; political artworks like “All You Can Eat” fall squarely under its protection.
Mr Giuliani also states that your collage infringes on Mr Trump’s “right of publicity.” A person’s right of publicity is, in many ways, similar to a trademark. But where a trademark protects images, symbols, words, or other indicia of a business’s identity as used in advertising or for commercial purposes, the right of publicity protects a person’s face, likeness, name, voice, or other aspect of their personal identity as used for commercial purposes. The crux of the right of publicity claim is that last phrase: “as used for commercial purposes.” If I put Brad Pitt’s face on the front of boxes of cereal I sell, that is an infringement of Mr Pitt’s right of publicity, because I am using his recognizable identity to advertise my own product without his consent. If I paint Mr Pitt’s face into a large, complex painting, that is not an infringement, because the painting is an expressive artwork and not an image used for commercial, advertising purposes. But if I later license that painting to a company who will put it on a billboard advertising their product, that is an infringement - Mr Pitt’s likeness is used to advertise a product, without his consent.
Here, Mr Trump’s claim of infringement of his right of publicity will likely fail, because you are not using the image of Mr Trump’s face within the collage to advertise any product, or for any other blatantly commercial purpose (aside from offering the collage itself for sale). You are not attempting to capitalize on the Trump brand and the “goodwill” associated with it for your own advertising purposes. Rather, you are using his image and likeness for an expressive, artistic purpose. Would a reasonable viewer look at your collage and think that Mr Trump himself endorsed or sponsored your product? If the answer is no, then a right of publicity claim is probably toothless.
Last, Mr Giuliani claims that you presented Mr Trump’s likeness in “false light.” Presenting someone in false light means that you have shown them - in a realistic manner - doing something which they would never do, which is offensive to their reputation. Photoshopping a famous vegan activist chowing down on a hamburger might constitute false light. Here, Mr Giuliani claims that depicting Mr Trump with a woman’s body, eating missiles and murder victims, constitutes false light.
There are two main defenses to this claim. The first is simply that the collage is highly fictionalized - no reasonable viewer would look at the image and genuinely believe that Mr Trump was photographed devouring warheads in full drag, and for a false light claim to prevail, the “falsity” must seem real to the viewer. The injury that drives a false light claim is harm to a person’s reputation through misleading words or imagery; but if no one is misled, then no harm is done, and the claim cannot succeed. The second defense is the same that we have mentioned before - the First Amendment. The First Amendment provides strong protections against anyone making political speech or speaking about public figures, especially public officers such as Mr Trump. The message of “All You Can Eat” is expressly political - it comments directly on Mr Trump’s role as head of the military.
When you use a person’s likeness in artwork, there are certain considerations you must take into account. How recognizable is this person’s likeness? How much is my artwork leaning on this person’s recognizable, commercially viable identity? Is my artwork presenting a false idea about this person in a way that seems true? Am I going to license my artwork for advertising or commercial purposes? These are all important factors to consider when making expressive artwork, and if you are ever unsure about the nuances of your position, don’t hesitate to contact an attorney.