Monday, July 22, 2013

intellectual property in the uncanny valley

Noel Cruz repaints dolls to make them look more like their models (that is, more like the actors as they looked when they played the relevant characters, or more like the celebrities).  The results are often uncanny.  Apparently there is an entire “repainting” community.  The first sale issues, both in terms of copyright and in terms of trademark, are quite intriguing—and I don’t recall that any right of publicity case has addressed first sale at all.  (For copyright, I’d argue that to the extent that Cruz makes the dolls resemble the relevant actors more, he is not changing anything a copyright owner could own, as the appearance of a real human being isn’t part of the protectable expression in a TV show or movie—but there is loose language in cases like X One X that could be read otherwise.  But if X One X is right—if MGM owns a copyright in Dorothy-who-looks-like-Judy-Garland—then that has interesting implications for §301 preemption, since courts in right of publicity cases usually hold to the contrary.)

Examples from people/characters involved in litigated right of publicity, copyright, and trademark cases:

Cruz also does black and white portraits, for those interested in Comedy III issues.

Side note of possible interest to Vampire Diaries fans—he did a great job on Stefan, but clearly understood that his Damon was subpar and has no closeup pictures of the less broody Salvatore.  That might be due to the underlying doll’s failure to replicate the actor’s distinctive facial structure, since I imagine there’s only so much repainting can do.  (If anything, that doll looks more like Joshua Jackson to me.)

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