Portraits & Caricatures Regulatory Frameworks & Compliance 4 — Questions and Answers
Question 1: A portrait artist photographs a subject at a public event and later paints a portrait from those photos. The subject objects to the painting being sold. The subject's strongest argument is:
- The artist lacked permission to photograph in public
- The commercial sale of the likeness violates the subject's right of publicity (Correct answer)
- The first-sale doctrine bars the sale
- Copyright in the photograph prevents the painting
Correct answer: The commercial sale of the likeness violates the subject's right of publicity
Even when photography in public is legal, the commercial exploitation of the captured likeness can still trigger right-of-publicity claims.
Question 2: Under the FTC's endorsement guidelines, a caricature artist who posts a sponsored caricature of a brand mascot on social media must:
- Obtain a model release from the brand's legal team
- Clearly disclose the material connection (e.g., #ad or #sponsored) (Correct answer)
- Register the image with the Copyright Office before posting
- Obtain a license from the state attorney general
Correct answer: Clearly disclose the material connection (e.g., #ad or #sponsored)
FTC guidelines require clear and conspicuous disclosure of any material relationship between the artist and the paying brand.
Question 3: A gallery in Texas sells a commissioned portrait of a local businessperson without the subject's knowledge or the artist's consent. The businessperson's strongest federal claim is:
- Copyright infringement (unauthorized display and sale) (Correct answer)
- Patent infringement
- Trade secret misappropriation
- Unfair competition under the Sherman Act
Correct answer: Copyright infringement (unauthorized display and sale)
Selling and displaying a copyrighted portrait without authorization from the copyright holder infringes the distribution and display rights under 17 U.S.C. §106.
Question 4: The Visual Artists Rights Act (VARA) grants portrait painters which of the following rights?
- The right to reproduce their works on merchandise
- The right of attribution and integrity for works of visual art of recognized stature (Correct answer)
- The right to prevent all digital reproduction
- The right to approve all gallery exhibitions
Correct answer: The right of attribution and integrity for works of visual art of recognized stature
VARA provides moral rights — specifically attribution and integrity — allowing artists to claim authorship and prevent intentional destruction of works of recognized stature.
Question 5: A portrait artist's commission contract includes a 'kill fee' clause. This clause protects the artist by:
- Allowing the artist to destroy rejected work without liability
- Ensuring partial payment if the client cancels after work has begun (Correct answer)
- Transferring copyright to the client upon full payment
- Limiting the client's right to request revisions
Correct answer: Ensuring partial payment if the client cancels after work has begun
A kill fee compensates the artist for time and materials invested when a client cancels a commission mid-project.
Question 6: Under COPPA (Children's Online Privacy Protection Act), a portrait artist's website that collects children's photos for online caricature creation must:
- Display a COPPA notice but need not obtain consent
- Obtain verifiable parental consent before collecting personal information from children under 13 (Correct answer)
- Comply only if more than 1,000 children use the service
- Follow HIPAA instead of COPPA for minors
Correct answer: Obtain verifiable parental consent before collecting personal information from children under 13
COPPA requires operators of child-directed websites to obtain verifiable parental consent before collecting personal data — including photos — from children under 13.
Question 7: A caricature in a political advertisement falsely implies that a mayoral candidate committed tax fraud. The candidate's best legal remedy is:
- A VARA moral rights claim
- A defamation claim based on false implication of fact (Correct answer)
- A copyright infringement claim
- An FTC complaint for deceptive advertising
Correct answer: A defamation claim based on false implication of fact
When a caricature implies specific false facts (like committing a crime) rather than pure opinion or satire, defamation law provides recourse.
Portraits & Caricatures Regulatory Frameworks & Compliance 4
A portrait artist photographs a subject at a public event and later paints a portrait from those photos.
The subject objects to the painting being sold.
The subject's strongest argument is: