The art world has a love-hate relationship with the commercial arts—the fields of advertising and product design, particularly. Fine artists and street artists both have brought lawsuits against numerous retailers, including Alaska Airlines, American Eagle Outfitters, Coach, Epic Records, Fiat, General Motors, H&M, McDonald’s, Mercedes-Benz, Moschino, Puma North America, Roberto Cavalli, Starbucks and The North Face, for making unauthorized use of copyrighted imagery. Settlements usually are the outcome.
However, many fine artists have welcomed the opportunity to license their images to advertisers and product manufacturers. Back in 2018, painter Kehinde Wiley signed an agreement with Hollywood-based Brillstein Entertainment Partners for representation in film, TV and endorsements. The deal involved Wiley working closely with Brillstein to identify directing opportunities, option books and produce and develop his own material, as well as collaborate with other screenwriters and creators, in addition to licensing his works.
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Wiley is not alone in this type of entrepreneurial endeavor. Jeff Koons, Vik Muniz, Julian Schnabel and Kara Walker have all licensed images to the giftware company Bernardaud, while automobile manufacturer BMW has a line of thirty-five Art Cars decorated with designs by a range of artists, including David Hockney, Jenny Holzer, Julie Mehretu, A.R. Penck and Andy Warhol.
Licensing is often free money for artists who do not need to create anything new but simply allow existing images to be used on jewelry and jigsaw puzzles, booze and bars, tablecloths and t-shirts. Kara Walker’s images of mammies and pickaninnies on otherwise white ceramic pitchers may, as Bernardaud promotes them, address “slavery and racial discrimination in the antebellum South” while also raising “awareness to the intrinsic bigotry that still exists throughout the United States”—although the connection might strike some as jarring.
“You need a good rapport with the person or company licensing your work,” New York painter Tom Christopher told Observer. He has licensed images for one product or another for 30-plus years, including Absolut vodka labels, iPhone and iPad covers, snowboards, sneakers, dress ties and, most recently, the faces of Ikepod wristwatches. “You don’t want your images used on something ridiculous or something that would embarrass you.”
His deal with Christian-Louis Col, the owner of Ikepod, is 10 percent of the sales price of the watches, which individually sell for between $1,400 and $2,500. “They’ve been sending me checks for the past two years,” Christopher said. In the course of a year, he earns between $10,000 and $20,000 in licensing royalties.
Legal battles signal confusion and the risks of unauthorized use
The financial benefits of licensing sometimes lead to disputes with artists’ families, foundations and estates. One of the sons of Pablo Picasso, Claude, who was also the court-appointed executor of Picasso’s estate, licensed the Picasso trademark (including the artist’s name and signature) for use in connection with a line of French automobiles by Citroën. That led to a lawsuit brought by Marina Picasso, the artist’s granddaughter, who announced that she “cannot tolerate that the name of my grandfather and my father be used to sell something as banal as a car.”
Mara de Anda Romeo Pinedo, a great-niece of Mexican artist Frida Kahlo, brought a temporary injunction against a Panamanian-based licensing agency that represented the artist’s heirs for permitting the artist’s name and image to be used on alcoholic drinks, dolls and other products. The principal offending product was a Mattel-produced Frida Kahlo doll as part of its “Inspiring Women” series. “It should have been a much more Mexican doll,” she asserted, “dressed in more Mexican clothing, with Mexican jewelry.” The Frida Kahlo Corporation filed its own lawsuit against Pinedo for offering Frida Kahlo merch for sale with trademarks identical to its own.
Money just isn’t always enough of a motivating factor. In 2023, the lawyer representing the Joan Mitchell Foundation sent a cease-and-desist letter to the Paris headquarters of Louis Vuitton alleging the fashion brand had used the artist’s paintings in handbag advertisements after her nonprofit organization repeatedly declined to give its approval.
In 2018, British-Indian sculptor Anish Kapoor reached an out-of-court settlement with the National Rifle Association after it included a brief image of his 2006 work Cloud Gate, which is located in downtown Chicago, in a television ad that criticized gun control measures. The result was that the image of Cloud Gate was removed from further airings of the ad.
A court ruling in 1997 sided with artist Faith Ringgold when a reproduction of her story quilt Church Picnic was used as scenery in an episode of an early 1990s Home Box Office situation comedy called “ROC” off and on for a period of 26 seconds. HBO claimed that its use of the artist’s image was incidental, but an appellate court ruled that it constituted copyright infringement.
There are scores of companies that work with artists to license images to products. “Licensing art images is the fastest growing area in the licensing industry,” Charles Riotto, executive director of the New York-based Licensing Industry Merchandisers Association, told Observer. Back in the 1990s, at LIMA’s annual trade show, which takes place in June, there were just a handful of licensing agents who handled artwork. By 2000, there were approximately 100 art-oriented agents, and currently there are more than 200. “Licensees—manufacturers—like the idea of licensing a design because it’s safer and less expensive than celebrities. A design won’t end up in the newspapers for getting arrested after a fight in a bar.”
Marty Segelbaum, president and founder of MHS Licensing, told Observer that his arrangements with the thirty or so artists he represents only involve the limited use of images and that the artists retain the copyright as well as the originals. “We don’t deal with originals, and we’re happy if the artists can sell them,” he said.
Licensing represents an additional revenue stream for artists, since the cost of their originals limits the number of people who can afford to purchase their images. The likelihood that a large number of collectors will move up the ladder from coffee mugs to paintings and limited edition prints, regardless of how widely the products spread the artists’ “brand,” is small. Segelbaum said that “it used to be thought that having your work spread around on prints and products would dilute the value of originals, but actually people who buy the painting may buy the coffee mug with the same image because it’s a fun thing to have more often than someone who buys a mug going out and buying the painting.”
A generation ago, he said that many artists whose work he thought would be appropriate for manufacturers’ products were worried that licensing meant selling out or making themselves seem overly commercial. However, in the past 25 years and especially since the 2008 recession, there has been a shift in that sort of thinking. “Now artists say, ‘I can make money doing what?’”
