Fair Use Question of the Month: Right to Privacy vs. Fair Use

I've made a video where I claim fair use on a film clip that features a celebrity. I'm confident that it's fair use--I've transformed it from its original context, and been careful to take just the amount I needed. I hope to release this work commercially. But can the celebrity then say "I acknowledge the clip was protected by fair use, but using my likeness to make money from this film isn't fair use"? In other words, does a celebrity's right to benefit from his or her likeness trump a filmmaker's fair use rights? While the original producer of the celebrity's image may not be able to take me to court on my use of the image, could the celebrity in the clip?

Thanks,

Lauren

ANSWER

Dear Lauren,

Some states have laws designated to protect celebrities from others making money off their image without paying them. That is why we cannot all fund our favorite bad habits by making and selling Elvis bobble-head dolls. All these laws, however, have large exemptions for freedom of speech. So read the Documentary Filmmakers' Statement of Best Practices on Fair Use, or the Code of Best Practices in Fair Use for Online Video--whichever is most relevant--and use your best judgment on whether your use of the material really is fair use. You won't need to worry about the celebrity likeness if your purpose was not to take it in order to make money on that likeness specifically (for instance, an Elvis bobble-head doll).

The Center for Social Media