Jimi Hendrix merchandise sales shows two risks all creators face when basing characters on real people

Yes, I'll admit it, that title is a horrible and tortured pun. You should never have to experience anything like it again. (Okay, I'll stop.) But one seller of Jimi Hendrix merchandise had an experience in Washington State that teaches two valuable lessons to creators of content using the name, image, or likeness of real people.

(Okay, I promise, I'll really stop now.)

Experience Hendrix is one of two companies formed by the estate of Jimi Hendrix to exploit the rights to his name, image, and likeness through a series of trademarks the company has registered on certain images of Hendrix, his name, and his signature. They use these marks for basically every Jimi Hendrix product you've ever seen: their business is prolific and quite profitable. But of course as with all famous brands Experience Hendrix isn't the only entity trying to profit from Jimi Hendrix. Andrew Pitsicalis owns or has licenses to several works of art either created by Hendrix or showing him in them, and through various websites (including HendrixLicensing.com) he would sell copies of these works of art, onto which he had placed Hendrix's name, signature, and/or headshot.

Experience Hendrix sued Pitiscalis for state and federal trademark infringement, and Pitsicalis countersued seeking a declaration that Washington's right of publicity statute (which gives Experience Hendrix the right to be the only one to benefit from Hendrix's right of publicity even after death) was unconstitutional. At trial the judge held that the Washington right of publicity statute was unconstitutional. Each side appealed to the Ninth Circuit Court of Appeals.

Three points to help you avoid infringing when using popular source material

Every year, new versions of classic tales reappear in popular culture. Sherlock Holmes showed up in both movies and television. 2013's breakout surprise hit TV show was based on Washington Irving's "The Legend of Sleepy Hollow". And since the stories and characters upon which these hits are based are often themselves in the public domain, you might be tempted to create your own retellings of these tales too.

You can, but you need to be careful.

In a prior post on the character of Sherlock Holmes I made two important points about using pre-existing characters:

1. Where there are portions of a character in the public domain and portions that aren't, it's permitted to fork the characters to use only the public domain elements.
2. Forking characters in this way doesn't infringe on the rights of a copyright holder who might own non-public-domain elements to those characters.

But what may not be clear is how you can take a public-domain character and make them your own creation such that no one else can use your version of them, and in contrast when you're making too close use of someone else's version of the characters. A recent judgment from Canada gives us 3 good rules to help you make that decision.

Three not-so-elementary tips for using pre-existing characters, my dear author...

Being the start of a new year, January 1 (yesterday) saw a whole new set of works come into the public domain. And as that happens, some authors may want to use their characters for their own purposes. But if those characters are used in multiple works and not all of them are available, you might think you can't. Certainly the rightsholders for the later works will want you to think so. Are they right? A recent judgment on Sherlock Holmes gives some insight into this far-from-elementary question.