Talking Heads: Is it Safe to Create Animated
Characters Based on a Customer's Photo?
This month’s question again returns us to the rights
privacy and publicity, as well as copyright and fair use. These
rights should be considered whenever your work depicts real
people, or if you start with a pre-existing photo.
Q. I am a website designer
and graphic artist with a legal question. As a service,
I will take a photograph supplied by a customer, and
make it look like it is blinking or speaking. There's
a technical process here I won't burden you with, but
the end result is an onscreen character that you can
basically make say anything you want. In general I've
been doing this with individuals' photographs, now I've
been asked to create one of ‘Ace Ventura.’
For clarification, I'm not using the picture for
any commercial purposes of my own. The customer supplies
the photograph, I make modifications to the photograph,
and return the results of the work.
My question is, if I charge $10 for the service,
and the customer supplies the image, am I liable for damages
if there is a legal issue? Would the presence of a 'service
agreement' which the customer must agree to, and I disclaim
all liability, before I perform the work help clarify this?
I assume this is considered 'commissioned artwork',
and while I'm somewhat familiar with copyright law, I'm uncertain
with the rules on how they apply to this particular scenario.
I also assume this is considered 'work for hire', and that
the legal 'ownership' of any derivative work belongs to the
customer. Please let me know if this is incorrect. I appreciate
any clarification you might be willing to offer. Thank you
in advance for your assistance.
A. This is a very interesting question.
I think whether you would ultimately be liable for the work
you do on the photo of Ace Ventura, or any other photo supplied
by a customer, will depend upon what rights your customer
has to the original photo, and what your customer does with
the final product. Obviously, both of these factors are outside
your control. However, the good news is, with appropriate
contract language you would be an “innocent” infringer,
and thus your exposure is relatively low.
1. Your
potential liability depends upon your customer’s use
The intellectual property rights involved are copyright,
and the rights of publicity and privacy.
Copyright: When you create the animated character based
on a photograph, you are making a copy of that photograph.
Most likely, you are also adding your own copyrightable authorship
to that photograph (by adding artistic elements to enable
the facial animation). So you are correct, in that case you
are making what’s known as a “derivative work” under
copyright law. (See Legalities
#14 for more
on derivative works.) Generally, any unauthorized copy of
a photograph, including a derivative work, is a copyright
infringement unless it is used in a way that qualifies as “fair
use.” Whether a particular use qualifies as “fair
use” depends on several factors. See Legalities
#5. Parody is a classic example of fair use. On
the other hand, a purely commercial use of an image is generally
infringing.
Rights of privacy and publicity: Photographs of people also
involve the rights of privacy and publicity of the people
depicted. These rights may be violated under certain circumstances.
See Legalities #7 and
#8.
Generally, publicity rights are violated when an image is
used commercially. On the other hand, there is no violation
when the use is “transformative.” When you create
the animated character, you are participating in the process
that culminates in a use of that person’s image. However,
whether you are ultimately liable will again depend upon
what your customer does with the character.
Liability for unauthorized use: This is a relatively new
technology, and there is no case law that I know of that
addresses your potential liability in this specific situation.
Arguably, your own “use” of the photograph is
commercial, because you are charging a fee to create it.
However, I think the better argument is that your customer’s
ultimate use of the character will determine whether your
participation is infringing. This would be analogous to the
way the law treats website hosts, or other publishers of
potentially infringing materials. They will be liable if
the material they publish does not qualify as fair use.
