In a recent email from a choreographer who operates the downtowndancer.com blog, an interesting example of the confluence of copyright and right of publicity is raised. On the site, there is reference to a dispute involving a choreographer whose picture was taken by a dance photographer. The photograph was then used as the basis for a painting which became the label for an expensive wine. When the dancer contacted the photographer, she was supposedly told that because the painter was inspired by, and not copying her image directly, and in another format, no payment to her was required.
On May 9th, I did a blog on the Seventh Circuit's Toney opinion, where a model able to prevail under a state right of publicity claim, with the panel reversing an earlier ruling that the Copyright Act preempted such claims. The twist in the choreographer/wine case is not in preemption, but in the degree to which right of publicity claims may be influenced by copyright principles, in particular transformative use. One might think that the two types of protection wouldn't influence each other, but in the well-known case of Comedy III Productions, Inc. v. Saderup, 25 Cal. 4th 387 (Cal. 2001), the California Supreme Court reconciled First Amendment concerns in the creation of art using individuals' images (there the Three Stooges) with publicity rights by incorporating the copyright transformative use concept, writing "when a work contains significant transformative elements, it is also less likely to interfere with the economic interest protected by the right of publicity." 25 Cal. 4th at 405.
Comedy III was followed in 2003 by Edgar Winter v. DC Comics, 30 Cal. 4th 881 (Cal. 2003), letting DC off the hook for a miniseries featuring two singing cowboys that were "less than subtle invocations of Winter and others. The court stated a test of asking "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." 30 Cal. 4th at 888.
I don't know more about the facts in the choreographer-wine case, whether she is a protected under the relevant publicity statute, but the California Supreme Court provides one mode of analysis.