Likeness use for sculptures

'Is it legal', 'can I do this' type questions and discussions.
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Draven
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Likeness use for sculptures

Post by Draven »

Hi everyone,

I'm new here :D

I had a look through old posts and couldn't find exactly what I needed...

I wondered if someone here knows if you can sculpt (either with clay or digitally) a likeness of a celebrity/public figure and reproduce for sale in the UK?

I.e. if I sculpt a likeness of say Winston Churchill and reproduce copies of my work.

Thanks in advance for your help 😁
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AndyJ
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Re: Likeness use for sculptures

Post by AndyJ »

Hi Draven,

There is no problem with creating a sculpture which depicts a person, whether alive or dead, either from the point of view of copyright or the person's privacy rights. The situation is much the same as creating a portrait with paint or pencil. However assuming that you are not doing the sculpture from life, with the cooperation of the sitter, you need to be careful not to infringe the copyright in any source material such as a photograph of the subject, unless of course you took the photograph. Section 17(3) of the Copyright Designs and Patents Act 1988 specifically mentions that, in the context of infringement, copying an artistic work such as a photograph, includes the making of a copy in three dimensions of a two-dimensional work. Making a sculture digitally increases the chance of directly copying the source in a way which could lead to an infringement claim, especially where you rely on the software to create any unseen detail, rather than creating this detail from your own imagination. The problem with digital scanning is that it does exactly what you don't want, that is to say, it makes a faithful reproduction of the source image.

So in the case of a well-known person such as Winston Churchill, you should find as many different photographs of him as you can and base your sculpture on an amalgam of all of them, so that you avoid the danger of copying the specific characteristics of a single photograph. Where you can only find a single image of a less well known subject to work from, I would suggest you study the photograph very carefully beforehand to create an accurate mental image, or make an intermediate sketch, and then put the photograph away while you manually sculpt any detail in, say, the pose or expression on the face. That way you avoid the chance of unconsciously copying the key features which make the photograph unique. This is not the same as avoiding the physical features of the subject which make him or her distinctive, and thus recognisible. So for example, the inclusion of a cigar in a sculpture of Churchill might be appropriate since this is a feature we tend to associate with him. However try to avoid placing the cigar in the same position as it appears in a single photograph. Much the same approach should be applied to digitally creating a sculpture. Don't just scan a single image and then allow the software to render this in 3D. The absence of significant creativity on your part will increase the risk of copying which infringes. If you can find two or three images which are sufficiently similar to allow the software to blend them together, this reduces the chance of copying which infringes. It would be even better to first make a physical intermediate sketch in 2D which you then scan and work on digitally.

It might be worth making a note of the actual source material you use for any given subject, so that if at some later stage it is suggested that you copied a specific photograph, you can show that, in fact, you took your inspiration from a range of images. I imagine that in order to find the detail necessary to sculp details which are not visible in a single photograph, such as the back of the head, you would try to use a range of photographs from different angles anyway. In reality you don't face very much risk of infringement provided that you use as much of your own imagination and personal style as possible when creating the sculpture.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Draven
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Re: Likeness use for sculptures

Post by Draven »

@AndyJ

Thank you for such a comprehensive reply! That's really helpful.

So, it looks like I'm good for making a bust or sculpture.

I might like to do one of JRR Tolkien, and I know they have quite an active estate managing rights to his work, but I am more interested in making a sculpture of the author himself than his fictional characters (which I know would be well protected under copyright).

Do you know where I stand if I wish to produce and sell copies of the finished sculpture? Does that change anything in terms of needing permission from the person (if alive) or their descendants/estate (if dead)?

Regards

D
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AndyJ
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Re: Likeness use for sculptures

Post by AndyJ »

Hi again Draven,

If you successfully navigate the copyright issue I mentioned earlier, then you need have no worries about any publicity or personal rights surrounding JRR Tolkien. As far as the data protection laws are concerned, these don't apply to a deceased person. Similarly the protection provided by Article 8 of the European Convention on Human Rights to private and family life (which it has been argued covers photographs of individuals in certain circumstances) also doesn't apply to the dead. Apart from these specific laws, the UK does not have any legislation which prevents an artist or photographer from making or exploiting the name or likeness of an individual.

The only other area of law you need to bear in mind, and it's one the Tolkien Estate frequently use, is that of registered trade marks. Tolkien's signature is registered as a trade mark in a number categories which include "figurines; novelty items and souvenirs", so make sure that your only use conventional typefaces for his name in any advertising associated with marketing your sculptures. While that won't guarantee that his estate won't try to distrupt your venture, at least you will know that they are bluffing if they cite trade mark law. Incidentally since you mention them, the main way in which many of the Lord of the Rings characters (from the books rather than the films) is also through registered trade marks.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Draven
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Re: Likeness use for sculptures

Post by Draven »

AndyJ wrote: Sat Jun 05, 2021 11:49 am Hi again Draven,

If you successfully navigate the copyright issue I mentioned earlier, then you need have no worries about any publicity or personal rights surrounding JRR Tolkien. As far as the data protection laws are concerned, these don't apply to a deceased person. Similarly the protection provided by Article 8 of the European Convention on Human Rights to private and family life (which it has been argued covers photographs of individuals in certain circumstances) also doesn't apply to the dead. Apart from these specific laws, the UK does not have any legislation which prevents an artist or photographer from making or exploiting the name or likeness of an individual.

The only other area of law you need to bear in mind, and it's one the Tolkien Estate frequently use, is that of registered trade marks. Tolkien's signature is registered as a trade mark in a number categories which include "figurines; novelty items and souvenirs", so make sure that your only use conventional typefaces for his name in any advertising associated with marketing your sculptures. While that won't guarantee that his estate won't try to distrupt your venture, at least you will know that they are bluffing if they cite trade mark law. Incidentally since you mention them, the main way in which many of the Lord of the Rings characters (from the books rather than the films) is also through registered trade marks.
Brilliant - thanks again for this info. Really useful and comprehensive.
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