I love “Celebrity X”, is it okay to make a Celebrity X toy?
It’s great to have heroes and we all love this actor or that sports star or that other famous person who does that thing that is just so damn cool. In fact a toy designer might love a particular shining star so much that they are inspired to make a terrific vinyl toy or resin statue in honor of that star’s awesomeness. Is it okay to use a celebrity likeness for a toy?
Short answer… every country has it’s own laws and regulations regarding using someone’s name or likeness in creative works. In the United States, pretty much every state has it’s own restrictions, penalties and over-sight. So, making a toy based on Celebrity X’s likeness is basically a risky mess, and best avoided without special considerations.
The core law in question, in all its different forms is the “Right of Publicity”, and it protects everyone, not just famous people, allowing people to control the use of their identities or likenesses. This extends to photos, paintings, sculptures, biographies, fictional characters “based-on”, and even online social site entries. The “Right of Publicity” covers all the attributes that make Celebrity X recognizable, not just their face, but their name, sound of their voice, mode of dress, and even in one case, the car they drive.
Yes, the transformative nature of the designer’s toy is taken into consideration by the court, in case of legal conflict. But how many indie toy designers out there can afford to go to court to defend that run of little plastic Celebrity X’s they made out of love?
The transformative nature of the toy means that the artistic creation has at least one, if not more, noticable creative attribute that extends beyond the basic depiction of the person being honored. For example, a designer toy of Andy Warhol with a soupcan for a head painted in the graphic colors of a Warhol silkscreen might pass. But a resin statue of Andy Warhol with big head might not.
Basically, in the US, the First Amendment protects communication about a subject, and it recognizes that sculpture, painting, drawing, etc are all modes of communication. This means, however, that the designer needs to actually be communicating something of substance about the subject, and not just creating a work of art that simply depicts Celebrity X.
It’s worth mentioning that the commercial structure for a particular Celebrity X toy has no bearing on whether it’s “okay” to produce. Giving them away as gifts can still be problematic, and again, it’s the rare toy designer that can afford to hire a lawyer and go to court to defend themselves, should the rights-holder become aggrieved.
So what should a star-struck toy designer do? It’s always possible to wild-cat it, make one of something, or a small number and hope to stay under the radar of the very same celebrity that the designer is trying to honor, but this is risky. On top of this inherent legal risk, there is also the fact that the designer is taking/using/exploiting a valuable resource that belongs to Celebrity X, and thereby injuring the very same person that the toy designer is looking to honor.
In simple terms, protect yourself by getting permission first, or find another way to give a shoutout to Celebrity X.
