Long story short: you can’t profit off of the likeness of someone else without their permission.
Edited 2/20/2024 to add video text to post
A young lady I know is a budding social influencer on YouTube and Instagram. Let’s call her Lizzy.
Then there’s a digital artist in a different state, let’s call her Judy.
Judy created a drawing of Lizzy and put it on Instagram, tagging Lizzy in the process. Lizzy is flattered, so she likes the photo and reposts it to her page.
A few weeks later, Lizzy does a Google search of her name and finds the drawing in the top Google images for her name. She clicks the photo and discovers that Judy is selling several pieces of merchandise with the drawing of Lizzy on it, and named after Lizzy’s Instagram handle.
What’s the issue here, you ask? I mean, Judy has the right to sell her artwork, she owns the copyright, so it should be good, right?
Wrong. The problem is that Judy never got permission from Lizzy to sell work featuring her likeness.
There’s no question that the copyright is completely Judy’s. But the problem begins when she tries to profit from a copyright that features the likeness of someone who did not give explicit permission for them to do so.
“Well, she liked the picture, isn’t that permission?” No.
Lizzy sent Judy a message asking to jump on a quick call to discuss the merch. Judy then sends a long message, offended that Lizzy messaged her, and tells Lizzy that she took all the merch down and didn’t sell any. Weird response, but ok, cool. Problem solved.
The next day, Judy changes her mind, puts it all back up, and renames them all from Lizzy’s handle to something similar, then lets Lizzy know what she did and that if she had a problem with it, she could talk to her attorney.
At this point, Lizzy says she only wanted to discuss, because she has a right to approve or deny things being sold featuring her likeness, but given the response she got from Judy, she would just like the merch removed from her store. Judy then reiterates how she’s well within her right to exploit her copyright, and that she did the same with a famous actress, and the actress bought a copy of the drawing.
Lizzy tells her to have a nice day and stops responding. But, of course, Judy doesn’t stop. She keeps sending message after message, telling Lizzy to lawyer up because it’s harassment at this point (Bish whet), then sends a “comparison photo”, which supposedly proves that it’s not Lizzy and that’s why she has the right to sell merch of the drawing. Of course, this is after she removed the beauty marks from the original, based on Lizzy’s beauty marks. (Bish whet)
Then decides to put up all kinds of merch with the photo: pillows, tote bags, iPhone and Android phone cases, you name it! At this point, it’s become petty.
At the moment, Lizzy is contemplating legal action and is well within her right to do so. Again, no one is disputing the copyright. We’re disputing the right to exploit the likeness of someone else.
Moral of the Story
You cannot legally profit off of the name and likeness of another person without their expressed permission. That includes basing a drawing or a painting on the image of another person.
Yes, you own the copyright of that particular piece of artwork. But that does not grant you the right to sell it.[Additional Resource] Using Name Or Likeness