Portraits & Caricatures Regulatory Frameworks & Compliance 2 — Questions and Answers
Question 1: A caricature artist sells prints of a celebrity's likeness without permission to raise money for a personal charity. Under the right of publicity, this use is most likely:
- Protected as charitable speech
- Infringing because commercial profit is involved even if charitable (Correct answer)
- Exempt because no profit goes to the artist personally
- Protected under the First Amendment in all states
Correct answer: Infringing because commercial profit is involved even if charitable
Right of publicity claims typically attach whenever commercial benefit is derived from someone's likeness, regardless of whether the artist personally profits.
Question 2: Which federal doctrine allows a portrait artist to create and sell a painting of a living public figure WITHOUT a model release for editorial or fine-art purposes?
- Work-for-hire doctrine
- First Amendment protection for artistic expression (Correct answer)
- The Lanham Act safe harbor
- DMCA Section 512
Correct answer: First Amendment protection for artistic expression
The First Amendment broadly protects artistic expression, including fine-art portraits of public figures when not used purely for commercial advertising.
Question 3: A portrait photographer in California uses a client's image in her studio portfolio displayed on her website. The client never signed a release. Under California Civil Code §3344, the photographer:
- Is automatically protected because the use is promotional, not product advertising
- May be liable because California requires written consent for commercial use of a likeness (Correct answer)
- Is safe as long as the image is not sold directly
- Has implied consent because the client posed willingly
Correct answer: May be liable because California requires written consent for commercial use of a likeness
California Civil Code §3344 requires written consent before using someone's likeness for commercial purposes, including promotional studio portfolios.
Question 4: An artist creates a caricature that exaggerates a politician's nose and depicts him accepting a bribe — a fictional scenario. The politician sues for defamation. The most likely outcome is:
- The artist loses because the image implies a false fact
- The artist wins if a reasonable viewer would understand it as satirical opinion, not fact (Correct answer)
- The politician automatically wins because caricatures are per se defamatory
- The artist loses because politicians have the same rights as private individuals
Correct answer: The artist wins if a reasonable viewer would understand it as satirical opinion, not fact
Caricatures and satire are generally protected when a reasonable person would not interpret them as stating actual facts.
Question 5: Under the work-for-hire doctrine, when a corporation commissions a portrait artist as an independent contractor, who owns the copyright by default?
- The artist, unless a written agreement says otherwise (Correct answer)
- The corporation automatically
- The subject of the portrait
- Neither party until the work is registered
Correct answer: The artist, unless a written agreement says otherwise
For independent contractors, the commissioning party owns the copyright only if a written work-for-hire agreement is signed; otherwise the artist retains it.
Question 6: A street caricaturist in New York City draws tourists without individual releases and sells the drawings directly to each subject. This practice is:
- Illegal under all circumstances without a street vendor license and model release
- Generally permissible because the subject is purchasing their own likeness (Correct answer)
- Prohibited under New York's right-of-publicity statute
- Legal only if the images are never reproduced
Correct answer: Generally permissible because the subject is purchasing their own likeness
When an individual purchases a portrait of themselves, their willingness to pay constitutes effective consent for that personal use.
Question 7: Which of the following uses of a deceased celebrity's portrait is MOST likely to require a license under right-of-publicity law?
- A museum exhibiting a painted portrait for educational purposes
- A greeting card company printing the portrait to sell commercially (Correct answer)
- A journalist including the portrait in a news article
- A documentary filmmaker using the portrait in a biographical film
Correct answer: A greeting card company printing the portrait to sell commercially
Post-mortem right of publicity (recognized in many states including California and Tennessee) restricts purely commercial uses like merchandise sales.
Portraits & Caricatures Regulatory Frameworks & Compliance 2
A caricature artist sells prints of a celebrity's likeness without permission to raise money for a personal charity.
Under the right of publicity, this use is most likely: