Likeness of dead celebrities, legality

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Hi.

Does anyone know about the legality of using the likeness of a dead celebrity in commercial work? I realize it´s a complicated area due to laws differing between states,but is there a general rule? I imagine estates could still hold rights to a persons likeness after death (Marilyn Monroe, Elvis and the likes) but if you only use the likeness and not the name, does that make a difference? I can off the top of my head think of a couple of cases (comicbooks mostly) where it has been done, and as far as I know, there were no legal ramifications.

Thanks in advance :slight_smile:

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I think this topic interesting so I just googled your head line and found this article

It’s probably best to see dead celebs as brands that won’t expire for some decades just like other intellectual property.

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[https://en.m.wikipedia.org/wiki/Personality_rights]

Firstly I’d recommend research IP/Copyright law, specific too your region then proceed from there.

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It certainly is an interesting topic. There is a difference between copyright and trademark, a lot of times something that is trademarked is not necessarily protected by copyright. An interesting example is Mickey Mouse; when steamboat willie enters the public domain everyone will be able to make their own derivative works of Mickey Mouse. However, Disney still owns the trademark to Mickey Mouse. Meaning if you make a mickey mouse cartoon, it has to be called THE MOUSE or FUN TIMES WITH WILLIE in its promotion / title/ etc.
In the example you provided, you may be able to use someones likeness (copyright) but you cannot promote the work using their likeness. (trademark)

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I can only consider something like this is feasible only regarding the passage of time.

https://en.wikipedia.org/wiki/Public_domain

Though persons are not “copyrighted” in the exact way, however since their likeness is captured on copyrighted works, it has to do only by using the likeness as a straight derivative from an existing character as appears in the movie.

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It is my understanding that Mickey Mouse will never enter the public domain. In addition to being a trademark, the copyright to all the works in which he appears are owned by a corporation … which has a perpetual life-span. Mickey is not purely the creation of “Walter Elias Disney, RIP.”

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Recently I saw someone post a sample program with “Mona Lisa” as a texture, then some people told him to remove the texture since the artwork is copyrighted by some museum. Is this the same case?

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Most likely.
People tend to forget that 90% of the images you find with a Google/Bing/DuckDuckGo are copyrighted in some way. This can get nasty real quick, lots of stories online of people getting fined by using ‘just’ a image for X purpose found om the web.

If you want to be sure, just choose the correct option under the ‘License’ Dropdown above the search results.

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From what I understand then is that we talk about two separate things, to separate the content (the painting) from the technical depiction (who took the picture, with some equipment, in some file format, under what circumstances).

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Probably, but there’s a massive gray area here, one that -again- can lead to some nasty surprises.
Copyright, in whatever shape or form is a virtual minefield, and assuming something has no legal basis is very tricky to start with :wink:

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A lot of “doing the right thing” is called: due diligence.

This is where you – and, better yet, your qualified attorney – “diligently” attempt to discover whether there are any IP-rights issues, and document in writing(!) exactly what they did and when they did it. And, that they concluded that what they were doing was legal “and here’s why.” Clearly document that you did this before using the materials. If any possible rights-holder could have been queried, document that you did so “at this address.” Or, “at 11:23 AM on X date, I called ‘this’ number and spoke to Y, who said …”

Be precise, be pro-active, and get it all on paper.

If there are any proprietary markings that could be included, include them all, along with (say …) “Fair Use,” or “Used By Permission.” There is an obscure but very important legal doctrine called the Doctrine of Laches which comes into play here, and it’s the vexation of every IP-rights holder (including you).

Of course … "Bam! Now, someone hits you with a “cease and desist” order. You have now properly set yourself up for an innocent infringement defense, and possibly to defeat the order itself.

About twenty years ago, I started writing a software product – still on-sale to this day – which would include some technology, and upon reading their license agreement I saw a gray area. So, I found the address of the company’s legal department and, before incorporating the technology, I wrote them a letter, described exactly what I intended to do, and asked them to clarify their position by return post. After picking themselves up off the floor in surprise, they quickly and politely sent their reply, signed by an appropriate company officer, and added, “thanks for asking!” Of course I still have both letters in my file. “Due diligence.”

"It never hurts to 'just ask."

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I’m pretty darned sure that Leonardo da Vinci’s copyright on Mona Lisa (which of course never existed) has long since expired.

But, the Estate of Andy Warhol’s rights to his various interpretations of it … haven’t.

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This is correct.

The problem comes that even though the artwork itself (Mona Lisa) is not under copyright, anything created from it, such as other artworks (like you said), or photographs from it are copyrighted. The same thing goes with music. There are countless centuries-old pieces of music which have no copyright protection. Anyone can do whatever they want with them and for example, perform them, but a recording of that performance is still owned by the person who created that performance. That’s the part that they own.

So jumping back to a texture of the Mona Lisa, it depends on the license on the photo. Maybe it was shared as creative commons, or mentioned that it is free to use, but maybe not. For images that you can find on the internet, it really can be either way and it is something that has to be considered if you were to just grab an image off Google Images.

Also, just like what @RobWu said,

it can get trickier. Some examples to look at are the copyright on structures such as the Eiffel Tower (at night), and the Hollywood sign, which I haven’t researched them too deeply, so I cannot comment here, but it shows there are definitely lots of exceptions and details to deal with.