Use of the name/likeness/work of a semi-public figure?
- November 26, 2005 @ 1:17pmMFischer84 says:Hello everyone-
This is my first post to the forums, but I have enjoyed this site as a wealth of information about copyright technicalities for a few months now. Thank you to everyone for the informative and interesting discussions.
I now have a question of my own (of course!). I am a film student at a private University, and I had a great idea for a movie that involved a real-life artist and one character's journey to meet that artist. This artist is (in real life and the movie) very reclusive and generally avoids any kind of public attention like the plague. This, of course, makes him all the more interesting.
Basically, getting his permission to use his name, likeness (as in an actor portraying him), or any of his art work (which appeared everyday in thousands of newspapers for 10 years) would be out of the question. Of this I have no doubt. So I wanted to know if anyone had opinions concerning just how far I can go with the use of his name, likeness, and publicly available work and still be within copyright bounds.
For one thing, this is a student project and I have no plans to liscense it for any kind of profit. It would only be for an educational experience and to promote myself as a filmmaker.
Since this artist is a semi-public figure, even if he is very reclusive, isn't it fair game to use his name and likeness in a movie, the same way that the creators of Saturday Night Live can parody celebrities and politicians every week? Also, since any use of examples of his artwork would be, in the film, entirely within the context of being attributed to him, the creator, would this present any problems?
If any doesn't feel up to rooting out the technical answers to these questions, I would just as readily appreciate it if anyone could point me in the right direction to some literature I could read on the subject and figure it out for myself. Thanks again, everyone!
- November 28, 2005 @ 4:06pmCOvalle says:Hello...
I'm not entirely certain about this subject, because it involves laws dealing with publicity, and those laws vary from state to state. You can certainly use his name to describe him, because you're describing him. Here's a place to start:
Also, the chapter on privacy in "Communications Law: Liberties, Restraints, and the Modern Media" by John Zelezny is a very good reference for people starting to look at publicity and privacy, in my opinion.
Publicity law gets complicated, though. Being a public figure does change their rights, but they still have privacy rights- things in their home, for example, might still be considered private.
You would need to make a fair use argument to use his artwork in the film. Displaying his artwork in the film is potentially copyright infringement, even for a documentary, and beyond that there's risk of a lawsuit even if your use is ultimately decided fair. Here are some quick resources:
http://www.authorama.com/free-culture-11.html (Lawrence Lessig chapter)
There's another really good article I remember but can't find at the moment- I'll see if I can find it later.
Attribution doesn't really make too much of a difference as far as U.S. copyright law goes- that is, just because you attribute it doesn't mean that you're not infringing.
If you were making this project and showing it to your class, you'd have a strong fair use argument. Since you said you want to promote yourself as a filmmaker, however, that implies that you want to distribute the work beyond the classroom. The distribution may cause some problems.
Anyone want to tackle a fair use evaluation with the information we have so far?
- November 29, 2005 @ 12:55pmAFry says:Doesn't anyone else want to tackle fair use? Feel free to add to my analysis or post alternative points of view.
There are two questions you need to consider:
1. Is the use fair (and therefore legal)?
2. Will you be sued?
Disney likes to sue. The motion picture and music industry like to sue. No matter how legal your activity is, using material owned by people who like to sue is always more dangerous than using material owned by people with no history of suing.
If this artwork "appeared everyday in thousands of newspapers for 10 years," then you probably want to use comic strips. If we are talking about a really popular strip like Calvin and Hobbes or The Far Side, then you may be engaging in risky behavior no matter how much the law is on your side.
Only you can determine how much risk you are willing to take.
Personally, I'd certainly be willing to take the risk for a school project. I'd probably be willing to take the risk for self-promotion as well, but that depends on exactly what you are going to do. If you are going to blindly distribute a large number of copies, I'd be less willing to take the risk. If you are planning on carrying around a copy so that you can show producers your work, I'd be more inclined to take the risk.
Assuming you are willing to take the risk:
Only a judge can make a definitive fair use determination. So, you cannot be 100% certain that your use if fair unless you get sued. You need to make your own fair use determination.
There are four factors used to determine fair use:
1. Character of use
For a school project, your use is educational. This factor clearly works in your favor.
For self-promotion, your use is indirectly commercial. You are trying to sell yourself, not your product. I think this factor still works in your favor.
2. Nature of work
Comic strips are highly creative. Most art is creative as opposed to factual. This factor clearly works against you.
This is difficult to assess. On the one hand, a single strip is a complete work. On the other hand, a single strip is a small, perhaps negligible fraction of The Complete Calvin and Hobbes.
Another thing to consider is how you will use the artwork. Maybe you are going to use a direct shot for a sustained period of time, which would allow the viewer to read the strip. Or perhaps the strips will be used to create an atmosphere (by hanging them on a wall or placing them on a drawing board).
I don't know how to assess this factor in your situation, but I usually assume this factor works against me anyway.
4. Effect on market
This is generally regarded as the most important factor.
Let's assume that your film is parody or pseudo-documentary designed to entertain or inform (Michael Jackson: King of Pop or The Rise and Fall of OJ) as opposed to propoganda designed to hurt the subject (Michael Jackson: Child Molester or OJ: Killer).
Does your use in any way affect the artist's ability to make money? I don't think so. I cannot imagine anyone deciding not to buy a collection of comic strips because they know they can see them in your film.
If you are not making a conscious attempt to damage the artist's reputation, then I think this factor is clearly in your favor.
There are no rules for how to weigh the four factors, but I think your use is clearly fair. However, I think the artist will disagree. In my opinion, two factors clearly work in your favor, including the one most people regard as the most important. One clearly works against you. The remaining factor is debatable, but I have assumed it works against you.
You must make your own determination.
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