NFTs, or Non-Fungible Tokens, are a way of owning and selling art digitally. An NFT can be anything from a picture, a video, a tweet, a meme, or an audio file of an album or song. The critical aspect that makes them valuable is the ability to track the source and identify it as a unique piece of art using a blockchain.
Because photos can be minted into NFTs, it might seem like a natural progression to use a celebrity photo as an NFT. However, you may be wondering if that is even legal.
Disclosure: I am not an attorney, and the following is not legal advice. If you need legal advice, consult with a qualified attorney.
I couldn’t find a specific law prohibiting making a photographic NFT of a celebrity (as of 2022); however, it is seen as a grey area and could very well lead to legal trouble in the long run.
According to posts by attorneys on AVVO.com, it would be illegal to take a photo and make an NFT of a celebrity and sell it for a profit as you infringe on publicity rights and copyright.
Frank A. Notolli of Natoli-Legal, LLC says, “You could be violating their right of privacy and publicity, which are state governed laws that vary. These kick in when one uses the name, image, or likeness of another (especially a famous person) to help sell or promote a good or service. Many states even extend these rights to deceased persons ranging from 10-100 years after they pass.”
Copyright, a person’s privacy, and what is legal should always be considered when you are creating NFTs to avoid any future lawsuits or criminal prosecution, as well as to remain ethical and respectful.
An area that may provide safety from certain copyright laws is when you create transformative art, but even when playing in this relm it’s not all black and white. I provide some examples of transformative NFTs below.
I chat about copyright and NFTs with further detail in this article: Is NFT Art Protected by Copyright Law? (How To Get Sued).
To explore when it would be best to avoid making an NFT of a celebrity, circumstances where it may be fine, and other NFTs to avoid making, keep reading.
Why Should I Not Make an NFT of a Celebrity?
Many things should be considered before using another person’s likeness as an NFT. As has already been pointed out, there is no specific law prohibiting making an NFT of a celebrity (as of 2022), but one will likely be created at some point in the future. Furthermore, the following issues must be considered:
- Are you violating their privacy?
- Are you violating their publicity?
- Are you violating copyright?
In other words, famous people have the right to publicize themselves, and by using a picture or likeness of them, you are taking away that right.
You may be able to share pictures of them, but making money off the image can be an outright illegal action, which infringes on their rights as the subject matter.
To further complicate the matter, the laws can vary greatly depending on where you live and are trying to sell the NFT. While it may be legal in one state, it could be illegal in another. The best thing to do is consult an attorney before moving forward if you still want to make an NFT of a celebrity.
What Are Other Legal Issues to Consider?
In addition to the celebrity’s right to privacy and publicity, another legal issue you may have to contend with is copyright. For example, there may be a picture that a celebrity has either agreed to share or has shared themselves: for example, a photo from the red carpet at an award show.
However, if someone else took that picture, then that is their property, and if you make it an NFT, then you are using and passing off their work as your own.
These are very similar circumstances that surround NFTs and fanart.
In some places, you may be able to get away with it, but in other areas, you could run into legal battles, which will drive the value of the NFT down and definitely push your legal costs up. If fact, that’s one way to really lose money with NFTs.
Even Quentin Tarentino is feeling the heat as he was recently sued by Miramax over some Pulp Fiction NFTs he created.
I don’t think anyone is going to be interested in acquiring an NFT that has the potential of ending up in court.
Furthermore, profiting from someone else’s creative or intellectual property is not a good way to earn money. However, if you took a picture of a celebrity at a public event where they consented to have images taken and, you have consent in writing, it would be your work, and you could potentially make an NFT out of it.
You may still have to deal with legal issues concerning privacy and publicity further down the road. Many California attorneys advise against minting or auctioning an NFT of a celebrity if you do not get consent from the individual beforehand.
Fine Art, Pop Art and NFTs of Celebrities. What Gives?
What if you make a digital painting of a celebrity and only use the likeness? Then mint it into an NFT and sell it for a profit? Well, this can still violate “the right of publicity,” but it could also be protected by the first amendment and qualify for transformative art.
Artists do this all the time, and you can find drawings and paintings on platforms like Etsy. In the NFT world, you will find them as well. I love the NFTs created by street artist LushSux. He creates some unique and funny NFTs of celebrities and obviously makes a decent profit while doing it.
Another popular NFT artist named Beeple does the same thing where he uses satire and pretty much makes fun of all things politics and pop culture.
This brings us to Pop Art. Pop artists like Andy Warhol created transformative pop art of celbrities and sold the art for hefty profits. Is this ok? According to the law, if the art is transformative, it should be fine, and it would be protected under the first amendment. However, it’s more grey area stuff.
Intellectual property right attorney Maurice Ross has this to say, “This is actually one of the hardest questions that IP lawyers face in their practice. This is because the First Amendment rights of artists may conflict with the rights of publicity belonging to celebrities. While many courts have held that the first amendment right of artists will prevail if the artwork is “transformative,” determination of whether a work is “transformative” is often quite difficult and controversial. Andy Warhol’s paintings likely would be deemed Transformative because Warhol plainly spoke with his own unique voice when he transformed images of celebrities and/or trademarked products (Campbell’s Soup Can) into his original style. However, there are many other circumstances where determining whether the painting is “transformative” is a much more difficult judgment call.”
Check out more attorney responses on Avvo.
Dead Celebrities and Their Rights
You may have read up to this point and have decided that making an NFT of a living celebrity is probably not the best choice for various reasons. However, what if the celebrity is no longer living? In this case, you should ask yourself two questions:
- Who is the celebrity?
- How much time has passed since they died?
Some celebrities and their families, living or dead, are much more relaxed about their images or likenesses being used. However, generally speaking, many celebrities have posthumous rights that their families may follow strictly, and it will bar you from using pictures of them as an NFT.
On the other hand, if the famous person has been dead for say, 100 or more years, then those posthumous rights most likely no longer apply (every country and even state has different lengths and rules), and you should be free to use the image or likeness as an NFT.
Here are some resources to better help you:
- Posthumous Right of Publicity: Jurisdictional Conflict and a Proposal for Solution
- Technology and Law Marketing Blog
Tyler Ochoa talks about PostMortem Right of Publicty and says, “Most legislatures have adopted a term of years after the death of the celebrity, ranging from 20 years (in Virginia) to 100 years (Indiana and Oklahoma). One state, Tennessee, allows the right to last indefinitely, as long as it is being exploited (see Elvis Presley). California originally adopted a term of 50 years after the celebrity’s death, a term borrowed from the 1976 Copyright Act; after the term of copyright was extended to life-plus-70 years in 1998, California extended its statutory post-mortem right of publicity as well. Two states with statutory rights of publicity (New York and Wisconsin) confine the right to “any living person,” meaning there is no post-mortem right of publicity in those two states.”
So, if you want to use a historical figure like Lincoln or Benjamin Franklin, then there would likely not be an issue one way or the other.
On the other hand, if you are using the image of a celebrity who has died more recently, like Michael Jackson or Elvis Presley, you will likely run into legal roadblocks sooner or later.
NFTs are pieces of digital art that can take the form of videos, pictures, and audio files. With the increase in ownership and selling of NFTs, some questions about what is legal and what is not are often at the forefront of those looking to create and sell NFTs.
One big question that many people may wonder about is whether it is legal to make an NFT of a celebrity. The answer is a bit more complicated than a simple yes or no as there are many nuances.
There is no specific law against it (minting an NFT), but the right to privacy, publicity, as well as copyright can make it difficult especially if you use the celebrity for promotion or profit. If you really want to sell NFTs of celebrities it is best to get an attorney and then get authorization from the celebrity in writing.
Even if the celebrity has died, posthumous rights are often in effect for another 100 years. If you want to create an NFT of a historical figure who has been dead for over 100 years, you should not have an issue bu. Still, generally speaking, it will likely be legally prohibited eventually…and like I said before, get yourself an attorney to help you out!
You know what else is going to help you out? These articles which show you ways on how to save money when you mint your NFTs. Check these out:
- The 3 Cheapest Ways to Mint an NFT: Full Breakdown
- What is the Average Cost to Mint and Sell an NFT? (Top Marketplace Examples)