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I asked a question at here that drew an unexpected, though helpful, answer. In order to understand the big picture, I want to ask a similar question, with a twist.

Suppose I hire someone to draw a caricature of a famous individual that really pushes the envelope. The artist says, "I can't draw that - I'll get sued for defamation!"

Here's my question: Is it possible for an artist to get sued for defamation if they're being paid by someone else to create a picture of a public official, celebrity, etc.?

For example, suppose I paid someone to create a really vile caricature of Donald Trump or Bill Gates. The picture is so far over the line that I get sued - and lose.

Could the artist also be prosecuted? This is what I'm ultimately getting at:

If I want to hire an artist, and (s)he says, "Sorry, but I can't draw what you want because I'll get sued," can I tell him "NO. No matter what you draw, you cannot possibly be held liable if it's a work for hire. If I pay you for all the rights, then the burden is entirely on my shoulders"?

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No one can ever prevail in a lawsuit against you for drawing a caricature of someone for any reason under U.S. law (other than breach of copyright if you are copying someone else's caricature without permission). An attempt to do so would be dismissed summarily at the outset.

  • Wow. I guess that answers my question once and for all. – David Blomstrom Oct 5 '18 at 1:34
  • @DavidBlomstrom: I wonder if the situation would be different if you hired someone to create a realistic image of Donald Trump or Bill Gates doing something vile. So realistic that it is not immediately apparent that it is fake. Would that qualify as defamation or as some other illegal act? – James Oct 5 '18 at 11:28
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    This answer is inaccurate. In Linebaugh v. Sheraton, 198 Mich.App. 335, 338, 340, the court ruled that a drawing was actionable under the Michigan defamation statute MCL 600.2911(1). Although legislation might certainly differ across states, the strong and purportedly "universal" denial in this answer misleads the OP in a way that is potentially very detrimental to various people (including the OP himself). – Iñaki Viggers Oct 26 '18 at 14:08
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    This answer is at best too broad. A "caricature " is not just any drawing but one which uses intentional exaggeration, simplification and/or distortion. Editorial cartoons often use caricature. A caricature is often an expression of opinion, and so not defamatory But not always. Think of a politician, shoiwn as a bank robber, breaking into a bank labeled "public funds". If used in connection with an accusation of graft, this could indeed be defamatory. The MI case linked above is another example. – David Siegel Oct 29 '18 at 17:00
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A realistic (but false) image of a person can be defamatory. Suppose that you create (or hire someone to create) an image of President Simon Legree that purports to show him accepting a bribe, or having sex with an intern. And suppose it is so skillfully created that reasonable people believe that it is a real image proving that these nefarious acts actually occurred. And suppose that you knew that the impression was false, and intended to convey that false idea. Then by circulating such an image you are defaming Legree, and Legree would be able to sue you and get a judgement against you if he can prove all of the above.

Now the essence of defamation is in publishing the defamatory content -- circulating it to others. Unless that happens there is no defamation. A person hired to create such a fake image might well not participate in the publication. But such a person would presumably know that the image was false, and might be in a position to know or expect that it would be used to defame Legree. (Although s/he might have been told it would be used to illustrate a satire or some other non-defamatory use.) Then perhaps the image creator would be liable as contributing to the defamation, or even as a member of a conspiracy. Much would depend on the details of the facts, and also on the specific state laws under which suit would be made.

Think of it like this: a caricature is a visual expression of opinion, and opinion, however unfavorable, is never defamation under US law. But a knowingly faked realistic image is a visual lie, and lies can be defamatory.

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Could the artist also be prosecuted?

The artist can be sued for defamation and lose in court.

I am addressing this question because the currently accepted answer is wrong and would expose the OP (or the artist) to liability if he were to rely on it. Likewise, a meritorious plaintiff would end up with the false and misleading notion that he or she has no remedies in court for a such defamatory drawing.

Note to the general public and pro se litigants: We non-attorneys withstand so much prejudice, arrogance, attempts of intimidation, and ridicule from attorneys (admittedly with some exceptions) both in court and in online platforms. But here is a clear, verifiable instance where the non-attorney's self-education in law allows him to reach the right answer, opposite to a lawyer's conclusion (and please note I have no problem acknowledging that the author of that wrong answer is knowledgeable about the law in general).

First, under U.S. defamation law, publication also encompasses drawings. Courts do not "summarily dismiss" a defamation claim for the sole fact that the publication at issue is a drawing.

In Linebaugh v. Sheraton, 198 Mich.App. 335, 338, 340; 497 N.W.2d 585 (1993), the court determined that "[a] drawing that imputes a lack of chastity [...] is actionable per se, irrespective of special harm. MCL 600.2911(1)". There,

the male figure depicted in the drawing resembled Schaefer with sufficient detail to lead her to believe that it was Schaefer. Also, the buttocks depicted in the cartoon are wearing Lee brand jeans, and plaintiff testified that she customarily wore jeans to work.

Likewise, in Daniel v. Wayans, 8 Cal.App.5th 367, 398 (2017), the court did not stop its review for the publication being a drawing. The court went further and assessed whether the cartoon at issue was defamatory. The court answered in the negative, pointing out that the drawing "did not insinuate or imply that Daniel shared any personality characteristics [of Cleveland Brown cartoon character]" nor did it "suggest[] that Daniel is a real-life incarnation of the cartoon figure".

The reason why the dismissal in Daniel was affirmed was not that the publication was a drawing, but because "it was a combination of an expression of an opinion by Wayans that Daniel looked like Cleveland Brown and an accurate photographic comparison". As such, it was not a viable claim of defamation or false light (A "false light" cause of action is a variety of defamation and is subject to the same requirements. Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 161 [269 Cal.Rptr. 379]).

If I want to hire an artist, and (s)he says, "Sorry, but I can't draw what you want because I'll get sued," can I tell him "NO. No matter what you draw, you cannot possibly be held liable if it's a work for hire. If I pay you for all the rights, then the burden is entirely on my shoulders"?

Even if putting artist's ethical considerations aside, the arrangement you outline is unlikely to suffice. Paying for the rights [to the publication, as I understand it,] will not necessarily supersede the legal fees, attorney fees, and judgment that the artist might have to pay if the plaintiff prevails. Defamation statutes in one or more jurisdictions include attorney fees in their definition of economic damages that may be recovered in a defamation lawsuit. See MCL 600.2911(7).

Even if you and the artist signed a clause whereby you commit to cover any and all court-related disbursements the artist would incur as defendant, your payment to the artist might not compensate for other losses (of business, of reputation, of consortium etc.) the artist might experience if (s)he accepts your request.

  • The accepted answer says that such an image would not be defamatory not because it is a drawing but because it is a 'caricature ". That implies intentional and obvious exaggeration, and most often is a visual way of expressing an opinion. As stated, the accepted answer is too absolute, because a caricature could be used to implay a factual statement which could be false and defamatory. – David Siegel Oct 29 '18 at 16:14

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