Can custom Bobblehead dolls cause copyright infringement?

The below does not constitute legal advice, does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. You have identified two major potential concerns: copyright and right of publicity. Copyright law can be a problem because if the user does not own (or have a license to) the copyright in the photograph they upload to be turned into a bobblehead, the bobblehead may be an infringing derivative work of the photograph. This may be affected by how closely your bobbleheads would resemble the particular photograph, rather than the person depicted more generally, as of course people themselves are not copyrighted. An example of this is the Obama "Hope" artist: he ended up getting sued by the Associated Press because he essentially took an AP photograph, changed the color scheme, and added the word "hope." Had he just used his own depiction of President Obama without reference to the AP photo, there should not have been a copyright issue. Similar problems exist in the context of right of publicity if a user uses the photograph of someone whose likeness they do not have permission to use. While right of publicity is generally limited to commercial exploitation of a person's name or likeness, the fact that customers will only use them for personal use doesn't really help because the customer could decide they want to sell the bobblehead after they have purchased it (and, of course, you have sold it to them in the first place). One potential way to protect yourself is to require the users of your site to agree, before they upload/order, that they sufficient permission for you to use both the photograph and the likeness of the person in the photograph, that you are relying on this representation, and they agree to indemnify you and/or hold you harmless if one or both of you were to be sued as a result of your production of the bobblehead. This is just general advice, and may not be appropriate to the specific implementation of your business concept. For example, the more people interact with the orders during the production process (and therefore the more opportunities that exist to spot potential right of publicity or other problems), the more affirmative steps you may need to take to weed out improper orders to minimize your potential liability. You should discuss the specifics with an intellectual property attorney who can give you more detailed advice with more information on how the business will operate.

Notice: The below is for educational and informational purposes only, is not a reflection on or a representation of any views or opinions held by my employer, and should not be construed as legal advice. Nothing herein is meant to create an attorney-client relationship. As aptly stated above, right of publicity issues may certainly arise, especially if you create bobble heads of celebrities or other public figures. While political figures may have somewhat fewer rights in their names and images due to first amendment and fair use concerns, in certain situations they can still sue to enforce their rights. Governor Schwarzenegger previously sued a company to stop the sale of a bobble head doll showing him in a business suit holding a gun (I believe that case eventually settled). You can certainly require all users to agree to very strict terms of use where they confirm that they have the legal right to have you create the specific doll and that they agree to indemnify you and hold you harmless in the event you get sued. However, this may have the unintended effect of pushing away potential consumers who are concerned about getting sued or having to pay to defend you in the event you get sued. Furthermore, it will not insulate you from a lawsuit. While it is certainly your business decision, for liability reasons, you might want to consider focusing solely on creating custom dolls using images of private individuals. For example, people might send you photographs of themselves doing certain activities (e.g. sports) or participating in special events (e.g. weddings) which you can then use to create the bobble heads (whether the copyright in those photographs is owned by a third party is another issue to consider). They might also consider uploading images of family members so you can create the dolls as gifts for birthdays, anniversaries, etc. It would still be prudent to require them to agree to certain terms of use for liability reasons (e.g. they own the copyright in those photographs and the individual has authorized use of his/her name, image and/or likeness, but focusing the business on those types of dolls might help to insulate you from potential lawsuits by celebrities, polticians, and other public figures. Another issue that is not clear is whether you will be manufacturing these dolls in your own facility, or, perhaps, will be using the services of a third-party. If the latter, it would not be surprising if their contract would require you to hold them harmless and indemnify them in the event they got sued. Given that right of publicity laws and court decisions vary from state to state, you should consider speaking to an intellectual property attorney experienced in this area. Good luck!

A very good discussion of Right of publicity can be found at: http://www.publaw.com/rightpriv.html