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Let's think about the Harry Potter franchise for a moment. Suppose that I wrote a great book about wizards, and I found an awesome water color of Daniel Radcliffe (the guy who played Harry in the movies) online. Supposing, further, that I got the artist's permission to use the image, what are the legal issues regarding using the water color for my book's cover?

Would it be legal in the US, UK, and Europe? What are the issues to consider? I suppose it's copyright (which seems to pass, since I would have got the artist's permission), trademark (which I'm unsure about), and model release (also unsure, but I think it's a pass since it's just a water-color and not a photo).

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    You might want to ask this of a copyright attorney, not of a bunch of designers :) – Vincent Nov 26 '15 at 14:33
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    In my opinion if your book is really great you don't need to associate it with an iconic figure of a serial. It's simpler to ask the artist for a new and original cover. – Paolo Gibellini Nov 26 '15 at 16:42
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    @Vincent to be fair, a bunch of designers should have an understanding of copyright law. :) – DA01 Nov 27 '15 at 1:41
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    @nomen I believe there may have been a question similar to this in the law stack. I posted another question there too about portraiture and facial likeness but have yet to get an answer – johnp Nov 28 '15 at 1:11
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There are three issues here:

  • The easy one. Do you have permission or a license from the artist? Or did they artist release their work under something like Creative Commons? If no, you're stealing their work, don't do it. If yes, move on to...
  • The medium difficulty question. Can a person's likeness be used like this? Leaving aside who it is for now, see this question: Is it OK to copy a person's likeness in a realistic portrait without their permission?. tldr; it's thorny legal ground. It's probably okay if the artist got the subject's permission for the work to be used widely.
  • The "OMG stop, don't even THINK about doing this" question. Did you say Daniel Radcliffe and the Harry Potter franchise? That is a big, big money franchise with every aspect of it protected and copyrighted that can be.

What you're talking about doing would be classed as feigning affiliation and endorsement from an A-list actor and one of the biggest film and literature franchises there is.

There is a whole cottage industry devoted to trying to rip off big franchises like this in order to boost sales of copycat works, and rights-holders have whole teams of lawyers whose full time job is to find and sue anyone who crosses the line, in order to protect the integrity of their franchise from the hordes of unofficial "me-too"s trying to cash in and cream off 1% of the Harry Potter millions.

I'm sure that's not what you're trying to do, but it's what it'll look like. You don't want to pay that game.

If you just paint a picture and put it on a blog, that's fine, they won't come looking for you. But when you use it in a commercial or semi-commercial context, they have a business interest in making an example of people like you. They will hunt you down, they will find you, and they will sue you.

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    that last sentence though :D – PieBie Nov 26 '15 at 18:47
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If it's clearly Radcliff's likeness, then you'll probably run into a problem. It's to do with a persons privacy rights, and to prevent them looking like they endorse things that they don't.

If it is plainly in character as Potter, you'd have a problem there as well, probably with Rowling / her publisher / the movie studio / etc. kinda sounds like it's not a portrait in character though.

Finally, since it's highly unlikely that Radcliff sat for a fan art, it was most likely painted from a photo reference, which would have a whole nother set of rights holders.

I wouldn't mess with it.

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You always need permission from the original author of any published work. When you create a work (read: anything) that work is yours. If you use fan art of a work as part of a larger commercial work without permission expect to be in a courtroom soon.

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