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Old 11-07-2008, 08:09 PM
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Re: Celebrity Portraites Question

Originally Posted by namjagee
You know it's a funny thing that people mention all these things. Of course sometimes you can change the pose of person or maybe even the facial expression, but how do you change someone if your doing photo realism? Your change certain aspects of feature of the person so it doesn't look like the photo and then it's not person your drawing it's someone that resembles the person. I thought the whole point was to draw the person as accuratlly as possible. If that isn't the case might as well just draw a black blob and call it "monroe" "elvis" etc..

Well, in actuality, here in the US ,a person's likeness is considered raw material that's not protected via a copyright. This truth makes it harder to figure whats protected and whats not with respect to photos. What's not is the raw material, but rather how this material is photographed.

In California in 2001, an artist created a charcoal drawing of the Three Stooges and sold them as lithographs and on T-shirts. The likenesses of the Three Stooges were extremely realistic. The owner of the rights to the Three Stooges' likeness sued under California law, which prevents the unauthorized use of the deceased person's likeness "on or in products, merchandise, goods or for the purposes of advertising, selling or soliciting purchasers of products, merchandise, goods or services." The artist argued that the statute did not apply since the lithographs and T-shirts were not an endorsement or sponsorship of a product. The artist also made First Amendment claims. The court found the claims had merit but did not agree with the artist. The court adopted a version of the copyright law's fair use test and found that the image was not sufficiently transformative to enjoy the First Amendment protection based on a fair use analysis.
What is important for artists about this case is that the court carved out an important exception to the right of publicity for art works. It held that if the celebrities' likeness is just "raw material" for an original art work and it is the artistic expression that is the dominant attribute of the art work, then the artist's First Amendment rights will trump the celebrities' right of publicity.
Take a look at this photoreal image.

No boubt that photos were used to create this likness, but this is an example of not the photo being copied, but rather the raw material IN the photo being copied. Gosh, hope that made sense.
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