A Guide Through the Legal Jungle Trivia Question
Leslie is an amazing sketch artist and avid Tom Cruise fan. She specializes in charcoal drawings, and
recently drew an impressively realistic image of Tom Cruise’s face. The sketch is so precise that some even mistook it for a black and white photograph! To show what a fan she is, she copied the image of Tom Cruise onto a t-shirt for herself. She got many compliments on her t-shirt—so many that she decided to make t-shirts in bulk with the sketch printed on it. She sold over 1,000 t-shirts! Does Tom Cruise have a claim against Leslie?
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No, Leslie is an artist and has a right to profit from her art.
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No, Tom Cruise is a celebrity, and people have a First Amendment right to comment on celebrities through art and profit from their labor.
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Yes, Leslie used Tom Cruise’s likeness for her personal profit without his permission.
The correct answer is C. This is a violation of Tom Cruise’s right of publicity since Leslie is using Tom Cruise’s likeness for a commercial purpose without permission. Leslie’s depiction of Tom Cruise is quite literal. The more literal the depiction of a celebrity in your artwork, the more likely it is that your artwork violates the celebrity’s right of publicity. In contrast, using a celebrity likeness in your artwork may be protected by the First Amendment if you add enough creative elements to the image to qualify your use of the original image as transformative.
(Thanks to Colleen Mulcrone, 2009 JD Candidate, American University, Washington College of Law, for her contribution to this trivia question.)
