Today I was at a local indoor shopping mall and came across a kiosk set up by someone that was an artist. The artist had a collection of colorful matted prints, all original paintings, people that are popular; rock stars, sports idols, movie stars, etc.
The artwork was really good and showed professional ability. My problem here is the subject matter. I spoke with the person tending the kiosk and went on to explain how I had always dreamed of starting my own kiosk if I ever got lucky enough to win top prize in the million dollar lottery.
I continued by saying that if I were selling work at a kiosk my artwork would not be anything of celebrities. I told the attendant this artwork is original yet the trademarks of all the celebrities was a problem when it comes to selling and making a profit on someone else. Practice or displaying artwork to prove your ability to create something that looks like the person in mind is one thing, yet when you sell portraits of celebrities are you really selling work based on your ability or appealing to the consumers interest in their personal favorite popular celebrity? Would the same person still buy your work if you replaced the celebrity with a portrait that was equally done as well yet someone unknown? In most cases the answer would be no.
If this is the situation there needs to be a consideration of trademark violation when selling portraits of celebrities without their consent. In most cases gaining consent for a single painting or drawing seems ridiculous and a waste of time. On the other hand what if someone made 500,000 copies of the painted celebrity and successfully marketed and sold the copies for $10 profit on each print. Do you think the celebrity would have the right to start a law suit and claim some of the profits? It seems to me you would need to get consent and possibly a signed contract to share a percentage of the profits with the celebrity.
Any thoughts on this subject, or vital information to debate my conclusion?