Producing Artistic Likenesses

[NatalieJUK]

If I wanted to make and sell a doll kit of a famous person such as a pop star - Lady Gaga for example - would I run into any copyright problems?

There wouldn't be any photographs of the artist/band - purely photos of the finished doll.

I would make it clear it wasn't official merchandise. And is the situation any different with a band, i.e. a doll kit enabling you to make dolls of a band? (I'm just thinking that bands might be easier to trademark, being more brand-like in the sense that they are put together by human beings rather than just being actual human beings).

Thanks very much!

[AndyJ]

Hi Natalie,
There are two things to consider here. The trade mark aspect and the publicity rights aspect.
The words 'Lady Gaga' have been registered as trade marks in the UK and Europe by Ate My heart Inc which is Lagy Gaga's cosmetic company, in a range of classes, principally those connected with cosmetics, perfume, jewellery, music and videos, but one Community Trade Mark includes games and playthings. So any venture involving a doll which looked like her should not carry the words Lady Gaga if you want to stay clear of any disputes. Ate My Heart Inc are fairly litigious, so even that might not be enough to avoid unwanted attention from their lawyers. The only other grounds they might argue is that of passing-off, but if you do include wording which disassociates your product from Lady Gaga herself, that would count in your favour.

However as far as the publicity rights are concerned, UK law* does not recognise a person's likeness as having any special protection, unlike a number of US states, so just the fact that the doll looked like her would not be grounds for a cause of action. But bear in mind that if you wanted to sell your doll kits in the USA via the internet, you may run into problems there, because Lady Gaga could get protection from the US courts.

The same principles apply to any other artist or group. But your final comment indicates you may have this the wrong way round. People as such are not given any particular protection as brands in the UK, whereas made-up products are. Trade mark legislation is there the protect the goodwill and reputation of a brand, and to prevent other manufacturers or suppliers from profitting unfairly from that reputation. As you will see, the whole purpose of your idea is to trade on the connection between your dolls and the people they represent, so that does tend to put you on a collision course with the rights owners if they feel this damages their brand.

* The Channel Island of Guernsey which is not part of the UK does have a law governing personality rights(pdf).

[NatalieJUK]

What a brilliant reply! Thanks ever so much for taking the time to give me such a thoughtful response.

I feared this might be the case. The thing that made me think it might be possible in some way is a book called 'Knitted Icons' (I'm not allowed to submit a link) which is quite well-known. It includes knitting patterns of people including Madonna, Bob Dylan and Muhammad Ali. I just wonder how the author got round it. I can't imagine her getting permission but I'll have to get a copy of the book to see.

So a person in public life who didn't have their name trademarked (such as David Cameron - not that that's an option!) wouldn't be a problem?

Thanks very much again for your help, most appreciated.

[AndyJ]

Just a quick follow-up. I mentioned the fact that many states in the US have publicity rights legislation which protects a person's name and likeness. One of the most comprehensive of these is the Californian state law 3344, which can be read here: Californian Civil Code §3344