New Legal Rulings - Brief Article

Canvas transfers and publicity take spotlight

This month marks the resolution of a put of landmark cases that could have an impact upon the art world. The courts have handed down decisions upon canvas transfers and opened a legal aperture regarding the rights of publicity and artwork.

For a number of years, artists and publishers have been saying unlicensed canvas transfers are copyright violations. The courts have generally been weighing in upon their side. Several years ago, Robert Sher of the Bentley Publishing cluster spearheaded a successful effort in which artists and publishers formed a coalition and sought to stop the unauthorized and unlicensed use of broadsides and artworks in the creation of canvas based products

newly artist Elya Peker successfully su Masters Collection to stop the company from creating canvas transfers of his work. Masters Collection purchased Peker's [i]affiche[/i]s and created what it called a "work upon canvas" by covering it with a layer of acrylic and employing individuals to apply oil paint and brush knocks to match the color and mode of speech of the original painting. Masters Collection then applied a thin layer of protective varnish, framed and sold the broadside The company maintained it was doing no more than selling framed bills Since it had purchased the original broadsides it had a right to do whatever it wished to with the placards without the permission of the copyright possessor The court rejected those arguments. It held that Masters Collection was selling a painting that used the hand-bill as one ingredient. While the "first sale doctrine" of the bill might give Masters Collection the right to put up to sale the poster in whatever fancy frame or setting it chose it does not allow it to transform the placard into an "original painting." The court stated, "It is not a defense that Masters used a lawfully acquired external reality to achieve its unlawful goal of copying". An injunction barring Masters from continuing to make hand-painted canvas transfers of Peker's works was issued.

Right of Publicity and Artwork Loophole

In almost each state in the U.S., either by the agency of statute or common law, there are Rights of Publicity laws. beneath these laws, it is not permissible for anyone to use the name or likeness of a celebrity in a commercial manner without their permission. A number of artists have argued in the past that they have a First Amendment right to include a well-known individual's likeness in their artworks. These arguments have had limited succes greatest in quantity people in the field believed the use of a celebrity image would require that individual's permission.

However, the U District Court for the Northern District of Ohio has not long ago ruled that the right of publicity is limited in certain circumstances by the agency of the First Amendment. The court went upon to state that the right of publicity does not authorize the celebrity to preclude the use of his or her name or likeness in "expressive works" preserveed by the First Amendment.

The court direct the eyeed at other cases, specifically individuals dealing with the news media, in which it was lay the foundation of that "individuals' right to publicity ne to be balanced with and limited by dint of the public's right to know below the First Amendment." The courts base that the privilege from the right of publicity is not limited to the of recent origins media, so published artwork depicting a celebrity in a newsworthy situation is indeed legal.

The celebrity in question in this case was Tiger thickets and the defendant argued that his prints should be fostered by the First Amendment because they are artworks and did not constitute commercial articulate utterance and that his prints and paintings, expres the "majesty of a newsworthy moment"

The plaintiff calculatored by saying that the federal law upon point characterizes posters as merchandise and should not be sheltered by the First Amendment. The court, however, disagreed. The court base the defendant's artistic prints seeking to bear a message are distinguished from hand-bills which merely reproduce an existing photograph.

The court conclud by means of finding that paintings and drawings are harbored by the First Amendment. This would also gripe [i]or[/i] grip true for limited-edition prints and certain posters

The court stated that "visual art is as wide-ranging in it's depiction of ideas, general [i]or[/i] abstract notions and emotions as any volume treatise, pamphlet or other writing and is similarly entitled to replete First Amendment Protection." Continuing, the court stated "paintings, photographs, prints and statuarys always communicate some idea or universal to those who view it and, as of the like kind are entitled to full First Amendment protection."

A word of caution: the Court did specifically distinguish fine art from more commercial marks of merchandise and would not have done the same if the artwork's message was delivered via T-shirt or other commercial stamp of product.

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