Can a Person Claim Copyright to a Drawing of Her or His Likeness?

The copyright to a drawing generally belongs to the artist who created it, not the subject of the artwork. However, in certain legal jurisdictions, the subject of the artwork can have personality or publicity rights, which can restrict the commercial use of the drawing without their permission.

Understanding Copyright and Likeness

Copyright law, which is a form of intellectual property law, grants certain exclusive rights to the creator of a piece of original work. For a drawing, these rights include the exclusive ability to reproduce, distribute, display, and create derivative works from the original drawing. The artist, not the subject, is typically the copyright holder.

When the Artist Retains Copyright

If the drawing was created by you (the artist) or under a work-for-hire agreement where you specified in the contract that you would own the rights, you can claim the copyright. In this case, the drawing is yours to use and profit from as you see fit.

When the Subject Holds Rights

However, if you are the subject of the drawing and your jurisdiction recognizes personality or publicity rights, you may have the right to control the commercial use of an image of you. These rights are different from copyright, as they pertain to your image and identity rather than the creative work itself.

For example, if a famous celebrity provides you with a drawing of herself, the celebrity likely holds certain rights that prevent you from using the drawing for commercial purposes such as advertising or selling merchandise without her permission.

Commercial Use and Personality Rights

The concept of personality or publicity rights varies by jurisdiction. In some places, such as the United States, these rights can be extinguished by the passage of time (known as the right of publicity), while in others, they may last indefinitely.

In California, for example, the right of publicity can last for a certain period after the individual's death and is governed by specific statutes. In contrast, in other states, the right of publicity may be more limited or different in application.

Legal Protection and Court Cases

Several high-profile cases have dealt with this issue, clarifying the rights involved and providing guidance for individuals and businesses navigating these legal waters. For instance, in the case of Kate Spade, the designer attempted to assert her right of publicity when another company used her likeness in advertisements. Such cases often involve complex legal strategies and can have significant financial implications.

Practical Considerations

As an artist, it's essential to be aware of the potential implications of your work, especially if your subject is a public figure with significant rights. Here are a few practical steps:

Understand local laws: Determine whether your jurisdiction recognizes personality or publicity rights. Maintain clear communication: If you're commissioning a drawing, make sure to discuss and clarify the ownership of rights with your subject. Get written agreements: Ensure that any contracts include provisions regarding the rights and usage of the artwork.

Conclusion

While the copyright to a drawing typically belongs to the artist, the subject of the artwork can sometimes assert rights over their likeness, especially in jurisdictions that recognize personality or publicity rights. It's crucial for artists to be aware of these laws and to take appropriate measures to protect their intellectual property and the rights of their subjects.

Understanding and respecting these legal nuances can help ensure that both artists and subjects are protected, fostering a collaborative and fair environment in the art world.