From the mailbag: A reader asks if an image of a celebrity can be used as a commercial embroidery project.
Answer: A few years ago, I had a client who was issued a cease and desist order and was sued for monetary damages by a personality. My client was using public domain images, which included this personality to print post cards, calendars and the like. While the images were public domain (creative works not protected by copyright and free for use by anyone), the personality had not signed a model release permitting the reproduction of their image for commercial use.
The final result: my client worked out a structured settlement with the personality over enough time that allowed him to stay in business. However, he was prohibited from selling any more product, which caused him a significant inventory loss. Luckily, my client had a back-up plan and managed to change the direction of his business.
Taking the public domain aspect of it, let's say you want to use an image of a celebrity taken by another. You would have to purchase the appropriate license from the owner of the image - most likely the photographer who took it, and then secure a model release.
For example, if you purchased a license from a photographer for an image of say Madonna they took at the Grammys and started silk-screening and selling t-shirts with this image without getting a model release from team Madonna, you'll more than likely eventually be getting a telephone call from her attorneys.
A few years back, there was a big hubbub because crafters were purchasing material printed with Disney characters from a fabric store like Jo-Ann Fabrics & Crafts and using the material to make items for resale. This was decidedly not cool with Disney as the license was only for personal, non-commercial use. Liken this to movies you copy either from the television or from burning DVDs. No big deal if it's for your own personal viewing, but quite the federal offense if you do this for resale.
Now - how about if you're a pretty good artist and you draw a picture of Elvis that you reproduce on coffee mugs or as embroidery patterns for resale to customers - are you open to any legal action by Elvis' estate? I am not sure.
In any of the above examples and even if you're reselling products with copyrighted images that do not containing recognizable people, I would consult an attorney for guidance. My client was honestly not aware he was doing anything wrong - a mistake that ended up costing him almost $100,000. When in doubt, it's always safer to get a professional legal opinion.