# Question about creating Caricatures of people to sell on shirts



## birdimus (Nov 26, 2011)

Hello, I hope this is the correct area to pose this question.

Essentially, I am working on doing stylized versions of people in caricature form that I will be putting on some short-run t-shirts. These will be artistically stylized (think BAPE celeb ) shirts. 

My issue is not knowing exactly what sort of contract/agreement to draft with the individuals I will be collaborating with. (they are not necessarily celebrities). 

Meaning, I will approach them with a character design that somewhat resembles them which I will put on a shirt advertising their name and also the name of my clothing company. 

As the designer of the character image, I want to keep the terms of the collaboration localized to my company only, meaning I don't want the image to be used anywhere else. I am not sure how this is orchestrated and I would REALLY appreciate any help someone could give. 

Note: These are not images made from photographs or existing logos, these are completely original caricatures design with the intention of co-branding.


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## kimura-mma (Jul 26, 2008)

You will need to get specific permission from each person to use their name and likeness on merchandise. Try googling "right of publicity release" for samples.


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## littlefatbuddy (Oct 8, 2012)

That is a difficult situation. The courts have ruled that (basically) your or any face is not necessarily protected material. That is how paparazzi can take pictures of celebs and then sell them for print. However, sometimes when you put them on material they become protected. I do not ever remember reading anything about a caricature though. Would it not become art at that point and be protectable? Well you probably knew all that and I did not help out all, sorry. Let us know.


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## kimura-mma (Jul 26, 2008)

Right of Publicity is a civil right that states that all people own the right to their own name and likeness for use on merchandise. So printing someone's name or likeness on a t-shirt without permission and selling it would be a violation of these rights.

When the paparazzi takes and sells pictures, it is considered a form of communication and not governed under publicity laws. Instead, Right of Privacy protects against defamation of the person depicted in the images. But they cannot legally prevent the taking and selling of the photos.

However, if those photos are printed on merchandise, then right of publicity laws would apply (as well as The Lanham Act, which helps govern the use of IP on salable goods).

Even in caricature form, these laws still apply. You need permission to use someone's likeness on merchandise. If it is your original art, it can protectable from others using your specific art. But you still need permission from the subject of the artwork to print and sell it.


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## BryanR (Dec 20, 2012)

Caricature could easily fall under parody, but to be safe, I would have them sign a contract stating they give you use of their likeness and maybe give them some sort of compensation for it.


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## kimura-mma (Jul 26, 2008)

You can still be sued for creating a parody. Get the permission from the people you are creating the artwork of.


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## littlefatbuddy (Oct 8, 2012)

Tim, so theoretically speaking? , if you used someones likeness without their permission it would be a violation of their civil right? Which in that case would make it a civil court issue and not criminal? Not that I have any plans to do any of this just like to have the information.


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## birdimus (Nov 26, 2011)

Thanks much, I really appreciate the information. I wasn't going to print this without their permission, I just wanted to know the approach to do a collaborative project from a legal standpoint. A few people mentioned the "Right to Publicity" law, and also I've been able to find some information about releases that have given me a better idea of how to frame a written agreement. I really appreciate the time you took to reply to this, and thanks again.


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## kimura-mma (Jul 26, 2008)

Depends on the situation. Violating right of publicity is a civil matter. But if you're selling the shirts across state lines, there's more to it than that.


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## Preston (Mar 21, 2006)

kimura-mma said:


> When the paparazzi takes and sells pictures, it is considered a form of communication and not governed under publicity laws. Instead, Right of Privacy protects against defamation of the person depicted in the images. But they cannot legally prevent the taking and selling of the photos.
> 
> However, if those photos are printed on merchandise, then right of publicity laws would apply (as well as The Lanham Act, which helps govern the use of IP on salable goods).


So the Inquirer is not considered merchandise? Sure it is but it has nothing to do with merchandise, it has to do with being claimed as news.


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## kimura-mma (Jul 26, 2008)

I'll clarify...
While the physical magazine may be merchandise, the buying, selling and reproduction of the photos in the magazine is legally considered a form of communication. Therefore, Right of Publicity and The Lanham Act would not govern those issues. But when an image is printed on a shirt or other merchandise or salable good, then Right of Publicity and The Lanham Act would apply.


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## Preston (Mar 21, 2006)

kimura-mma said:


> I'll clarify...
> While the physical magazine may be merchandise, the buying, selling and reproduction of the photos in the magazine is legally considered a form of communication. Therefore, Right of Publicity and The Lanham Act would not govern those issues. But when an image is printed on a shirt or other merchandise or salable good, then Right of Publicity and The Lanham Act would apply.



No law says a magazine has to be printed on paper. Have you never heard of "Wearable News"?

Just like you can write a check on a watermelon and the banks have to honor it. Been there, done that and it was fun.. They took a picture of it and then used a sharpie to void out the melon.


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## kimura-mma (Jul 26, 2008)

Correct, a magazine can be printed on whatever anyone wants to print it on. But if it's on a t-shirt, the appropriate laws would apply.


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## stphnwinslow (Sep 20, 2010)

Why not just think about it this way:

You know you're in a gray area. Do you want to be the one who pays to defend the right to do whatever you're doing in court?


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## BryanR (Dec 20, 2012)

kimura-mma said:


> You can still be sued for creating a parody. Get the permission from the people you are creating the artwork of.


Parody is fine as long as you redraw the design yourself and make it known that it is parody. That is how Teefury and Qwertees dont get sued. Its the same reason that artists cant be sued for political cartoons with slandering and defamation.


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## kimura-mma (Jul 26, 2008)

BryanR said:


> Parody is fine as long as you redraw the design yourself and make it known that it is parody.


Will making it known that it's a parody void the IP rights of the original work? Of course not. The IP owner will ALWAYS have the right to take legal action to protect their property. The creator of the parody will have to defend their work in court. It is then up to a judge to decide. So the reality is, only a judge can decide if a work falls under parody. Designers should never assume that their work falls under some parody veil that makes their work risk-free of legal action.



BryanR said:


> That is how Teefury and Qwertees dont get sued.


Tee Fury has been sued many times. To my knowledge, they have won some and lost some. But they have used the publicity of the lawsuits to their advantage. It's a business model that has worked for them, but not one that can be easily replicated.



BryanR said:


> Its the same reason that artists cant be sued for political cartoons with slandering and defamation.


Artists CAN be sued. But they have a legal basis to defend their work under free speech in regards to slander and defamation.

It also depends how and where the art is published. Newspapers, magazines, etc, are a form of communication, so it's legal for artists to have their works published in them. But if the work is printed and sold on salable goods, such as t-shirts, then trademark and copyright laws do apply as per The Lanham Act. And if the work includes a person's name and likeness, then right of publicity laws apply too. Artists need to respect these laws, otherwise they can be sued for infringement.


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