Discussion:
What is the name of your state? Texas
Hi my name is Clay, and Im an artist specializing in musicians and I dabble some with other famous actors. It is my understanding that if I independently create art of someone famous, meaning if I freehand or even paint a portrait of someone famous Im allowed to sell them. Does anyone know if this is accurate? I found a section in the laws of copyrights and it is pretty clear on what is says. Here how it is stated:
Independent creation is permitted. A second work, identical to an earlier copyrighted work, does not infringe, if it is, in fact, independently created. [Of course, the better known the first work, the less likely that an independent creation defense will be believed.]
Can someone please advise me regarding this, and if what Im thinking is ok is truely alright.
Answer:
Independent creation is permitted. A second work, identical to an earlier copyrighted work, does not infringe, if it is, in fact, independently created. [Of course, the better known the first work, the less likely that an independent creation defense will be believed.] That's a true statement with respect to copyright infringement; however, the problem you are going to run into in this situation deals with Trademark law, or, depending on which state you are in, state laws protecting one's likeness. Basically, a famous person is generally allowed to control the use of their likeness to sell other works, under the Lanham Act and certain other laws. The rule is not absolute, but can be complicated and is very fact specific.
In other words, to get a real exact answer, you'll probably need to speak with a local attorney who can review all of the facts and give you an opinion as to the legality of your venture.
Answer:
Thanks for the advice. I really need to know, because the way I look at it is there are so many artist throughout time that have done portraits of famous people, and it just makes me wonder. I looked on EBAY under art of entertainers, and there are numerous artists selling there drawings and so forth all day long. But in the same sense I wanna be smart about all this...