Depicting Branded Subjects in Fine Art: A Practical, Legally Literate Overview for Artists

Disclaimer

The following discussion is for educational and informational purposes only. It reflects an analysis of publicly available case law and commentary within the context of art, copyright, and expressive representation. I am not a lawyer, and this material does not constitute legal advice or establish an attorney–client relationship. Artists, educators, and organizations seeking guidance on specific legal questions, including questions about copyright, trademark, right of publicity, or fair use, should consult a qualified intellectual-property attorney licensed in their jurisdiction.

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Recently, a friend and colleague reached out after encountering a familiar issue: a piece she submitted to an exhibition was rejected because it depicted a Mario figurine posed in an environment that emulated the Super Mario Bros. video game. Interestingly, the organizers accepted a different piece—though with some hesitation—that included a Troll doll.

When the artist asked for clarification, the hosting organization cited copyright concerns, and the issue was brought to our Artist Roundtable for discussion. This situation reflects a growing tension in the art world. Artists often depict the visual landscape that surrounds them—including branded toys and characters that carry cultural meaning. Yet many gatekeepers (juried shows, galleries, competitions) apply a blanket “no copyrighted material” policy, rejecting works even when they are clearly original, expressive studies of legally owned objects.

That’s where this overview comes in.

The law, in reality, is more nuanced. Courts aim to protect expressive freedom and avoid acting as arbiters of taste or aesthetics. At the same time, they guard against uses that function as commercial substitutes for a rights holder’s products or licensing markets. The real question is not simply “did you depict something copyrighted?” but rather: how did you use it, and for what purpose?

From a legal perspective, the organization’s decision was more cautious than necessary, but not legally incorrect. Gatekeepers are entitled to adopt risk-averse policies, even when those policies go beyond what the law strictly requires. In this case, if the artist created the Mario-based piece from her own physical arrangement (e.g., using a purchased toy and composing the scene herself), and the resulting work was shown in a fine-art context (not branded or licensed as “Mario art”), the work likely qualifies as transformative and expressive use. It may fall under fair use, particularly if it doesn’t target Nintendo’s core licensing market.

The Troll doll piece likely passed with less scrutiny due to the brand’s lower enforcement profile, but it’s important to note that copyright still applies regardless of a work’s age, unless it has formally entered the public domain. What often changes over time is not the law, but how actively those rights are enforced. This distinction reflects brand vigilance and institutional risk management, not a clear legal boundary.

So, What is Fair Use? 

Fair use is a legal doctrine in U.S. copyright law that allows limited use of copyrighted material without permission from the rights holder, when the use is considered fair, beneficial to society, and does not unduly harm the market for the original work.

It is codified in Section 107 of the U.S. Copyright Act (17 U.S.C. § 107) and is assessed on a case-by-case basis, using a four-factor balancing test. No single factor is determinative, and courts weigh all relevant facts.

The Four Fair Use Factors:

When evaluating fair use under U.S. copyright law, courts apply a four-factor balancing test, weighing the facts of each case. No single factor is conclusive, and all are considered together.

The first factor examines the purpose and character of the use, including whether it is commercial or nonprofit. Courts tend to favor transformative uses; those that add new meaning, message, or function to the original work rather than merely replicate it. A work can still be considered fair use even if it has a commercial aspect, as long as it transforms the source material in a meaningful way.

The second factor looks at the nature of the copyrighted work. Uses that draw on highly creative or expressive works, such as visual art, fiction, or music, are generally afforded less leeway than uses of factual or functional works. Still, if the new work is sufficiently transformative, this factor tends to carry less weight.

The third factor considers the amount and substantiality of the portion used. Courts assess whether the artist used more of the original work than was necessary to achieve their purpose. In general, using a small or limited portion strengthens a fair use argument, but even a small portion can count against fair use if it represents the “heart” or most memorable part of the original.

The fourth factor evaluates the effect of the use on the potential market for the original work. This is often the most decisive factor. If the new work competes with the original—by serving the same audience or fulfilling the same licensing role—courts are less likely to find fair use. However, if the work operates in a clearly different market or expressive context, this factor may support a fair use defense.

It’s important to understand that fair use is not a right or a license; it’s a legal defense you assert if you are challenged. Courts weigh the actual outcomes, not just the creator’s intent. Whether or not your work “feels different” isn’t enough; what matters is how it functions in context, particularly in the market. In addition, even if your use is highly transformative and non-commercial, courts may still interpret the fair use factors differently or decline to weigh them the way you expect.

While transformative use is not legally required, it has become a central theme in court rulings. Especially in modern decisions, judges focus on whether the new work alters the original with new expression, meaning, or message. Courts also pay close attention to licensing markets, such as those for editorial illustration, merchandising, or posters, because a new work entering the same market as the original weighs heavily against fair use.

What Fair Use Is NOT

Fair use is not a free pass for anything labeled “non-commercial.” It is not the same as public domain, where works are free to use without restriction. It also doesn’t function like a Creative Commons license, which explicitly grants permission for certain uses. Perhaps most importantly, fair use is not a guaranteed shield, even strong fair use arguments can be litigated, and courts may disagree about how the four factors apply in a given case.

If you’re using copyrighted material as part of an artwork that creates something new, especially something rooted in personal expression, commentary, critique, or cultural reflection, and your work doesn’t compete with the original in the same market, you may fall within fair use. But it’s a complex, case-specific analysis, and true legal certainty usually comes only through court rulings or formal legal advice.

What If I Receive a Cease-and-Desist Letter?

Receiving a cease-and-desist (C&D) letter doesn’t necessarily mean you’ve broken the law. These letters are often used to discourage or preempt disputes. Many are sent out of caution or aggressive brand enforcement—not because a court would agree that infringement occurred.

If you receive one, take it seriously but don’t panic. Consider speaking with an IP attorney to assess your options before responding. And remember, fair use is a defense, not a pre-approved clearance.

A Note on Ownership, Depiction, and the “Competition” line

Owning a subject (like the Mario figurine) generally allows you to depict it in expressive work, but ownership does not grant rights to reproduce the IP in ways that imply sponsorship, suggest affiliation, or compete in the original’s commercial market. Ownership does not give you the right to manufacture similar toys, sell merchandise with the character, or otherwise trade on the IP as if it were yours. A painting or drawing of a toy you own is generally an act of expression; making and selling new toys or brand merchandise would be considered replication for the sake of competition. Courts are wary of artistic censorship; they are far less tolerant of activities that place an artist in direct economic competition with the rights holder.

“Derivative” versus “transformative” (and why purpose matters)

Copyright law restricts the creation of derivative works (new works “based on” preexisting ones) unless you have permission or a legal justification such as fair use. Fair use is a flexible legal defense that favors transformative uses: works that add new meaning, message, or purpose relative to the source.

It’s important to note that a work can still qualify as a “derivative” under copyright law and be transformative enough to qualify as fair use. Transformation doesn’t cancel the derivative status; it just provides a possible legal defense for the use.

Critically, courts examine context and market role. A painting of your own toy, made from your own setup and used in fine-art contexts, typically occupies a different expressive and commercial function than the IP owner’s licensed imagery or products. Conversely, placing a reworked image into the same market the original serves (e.g., licensing to an editorial outlet) may weigh against fair use even if the new work looks visually distinct. The Warhol v. Goldsmith (2023) decision clarified this: transformation alone doesn’t justify fair use if the market function overlaps.

In practical terms, a still-life painting of a Mario figurine is usually expressive representation, not a substitute for Nintendo’s games, toys, or posters. By contrast, selling prints labeled as “Mario art,” or licensing your painting to a magazine as an illustration of Mario, crosses closer into the rights holder’s commercial lane.

Beyond copyright, brand owners may assert trademark (including trade dress) under the Lanham Act to stop uses that confuse consumers about sponsorship or degrade a mark. Fine art that merely depicts a branded object rarely confuses viewers into thinking the brand sponsored the work, especially when context makes it obvious you are commenting, studying, or simply portraying an object you own. This is often evaluated under the Rogers test, which protects expressive works unless they are explicitly misleading or have no artistic relevance. Courts tend to interpret ‘artistic relevance’ broadly, so even what we might think is minimal expressive connection can satisfy the Rogers test unless the use is overtly deceptive.

Separately, right of publicity laws protect a person’s commercial identity (e.g., a celebrity’s likeness). Courts generally give expressive works substantial First Amendment protection when the depiction adds new meaning or is part of a broader commentary, but purely commercial exploitation (such as endorsement-style use) can trigger liability. Key decisions like ETW Corp. v. Jireh Publishing and Comedy III Productions v. Saderup illustrate how courts balance expressive rights with publicity interests.

These doctrines vary somewhat by jurisdiction, so risk may depend in part on where the dispute arises. Fair use is a matter of federal law, but interpretations differ across circuits. Right of publicity, on the other hand, is governed mostly by state law, and the degree of protection varies widely.

Key Precedents Artists Should Know

The following is a concise tour of leading cases that situate expressive depiction, transformation, and market substitution. These are not exhaustive summaries; they’re the core lessons relevant to studio practice and exhibition decisions.

Rogers v. Koons (2d Cir. 1992). Jeff Koons copied a photographer’s composition to make a sculpture (String of Puppies). He argued parody. The court rejected fair use because the sculpture closely tracked the photographer’s specific image and purpose; Koons had not merely depicted a similar subject, he had directly appropriated another artist’s photo as the source.
Takeaway: Using someone else’s specific image is risky. Depicting a subject independently, especially from your own setup or photo, is much stronger ground.

Campbell v. Acuff-Rose (U.S. 1994). 2 Live Crew’s parody of “Oh, Pretty Woman” was found to be fair use. The Supreme Court emphasized transformative purpose and explicitly rejected a rule that commercial use automatically disqualifies fair use.
Takeaway: A new meaning or purpose can outweigh commercial aspects. What matters is what the new work does and how it relates to the original.

Blanch v. Koons (2d Cir. 2006). Koons used a portion of a fashion photograph in a collage painting. The court found the use transformative as commentary on consumer culture and concluded it did not usurp the original’s market.
Takeaway: Recontextualization that serves a different expressive function favors fair use.

Cariou v. Prince (2d Cir. 2013). Richard Prince altered and collaged Patrick Cariou’s photographs. The appellate court found that most of Prince’s works were transformative, presenting a different aesthetic and message—even when attribution was absent.
Takeaway: Courts focus on new meaning or expression, not just visual difference.

Andy Warhol Foundation v. Goldsmith (U.S. 2023). The Court held that licensing Warhol’s Prince portrait to Vanity Fair (a commercial editorial use), served the same market purpose as Lynn Goldsmith’s original photograph (also licensed for editorial use). Therefore, the first fair use factor (purpose and character of the use) did not favor the Foundation.
Takeaway: A work can be visually transformed yet still infringe if it enters the same commercial lane. Courts assess market role and purpose, not just aesthetics.

Mattel, Inc. v. Walking Mountain Productions (9th Cir. 2003). Artist Tom Forsythe photographed Barbie dolls in satirical scenarios (Food Chain Barbie). The court upheld fair use and rejected trademark claims, noting the public benefit of artistic critique and the low likelihood of consumer confusion.
Takeaway: Depicting a branded toy you own in expressive, critical, or conceptual work is strongly protected.

ETW Corp. v. Jireh Publishing (6th Cir. 2003). An artist’s collage-style painting of Tiger Woods survived a right-of-publicity claim. The court applied a balancing test and found the work was sufficiently expressive to warrant First Amendment protection.
Takeaway: Artistic depictions of public figures are protected when they convey expressive content—not just exploit the celebrity image for endorsement.

Collectively, these cases show a through-line: courts resist censoring art but step in when a use substitutes for the rights holder’s market or copies another creator’s image rather than independently depicting a subject.

Practical Studio Guidance (for Representation of Branded Material)

For still-life practice and exhibition, the strongest legal and artistic posture is to build from your own physical setup and stay clearly within expressive channels. Stage and light the object yourself. Work from your own references. Present the result as a study of form, nostalgia, or critique; not as brand merchandise or editorial illustration.

If your composition unmistakably references a famous character, that’s generally acceptable in an expressive fine-art context—just avoid branding, slogans, or packaging that might imply sponsorship. Similarly, avoid titling or marketing that suggests affiliation (e.g., “Official Mario Art”) or that targets the IP holder’s core licensing markets, such as commercial illustration or product tie-ins.

If you’re invited to a show with strict “no IP” language, you can often make your case: explain that your work is a still life of a legally owned object, created from original reference, and that there’s no reasonable risk of consumer confusion or market substitution. Risk-averse venues may still decline, but that’s a policy choice, not necessarily the law’s verdict. Risk-averse curation does not equal legal consensus. A gallery’s rejection of IP-related work is often a business choice, not a reliable interpretation of fair use or copyright law.

Characters like Kermit the Frog and Mario are closely controlled properties. A painting that clearly references them can still be protected expressive use under the First Amendment, but some venues may self-censor to avoid perceived legal risk. By contrast, older or generic toys (e.g., 1990s troll dolls with no current branding) sit closer to cultural commonplaces. If you’re concerned about friction, choose props that aren’t actively licensed—or use cropping and abstraction to shift focus from brand identity to your artistic intent.

None of this is a legal requirement—but it’s pragmatic strategy.

The Court’s signal in Warhol v. Goldsmith (2023) is not “don’t transform”—but don’t enter the same market as the source without justification. Warhol lost on licensing his Prince image to Vanity Fair, not because it lacked artistic merit, but because it competed directly with the photographer’s own licensing market. For studio painters and illustrators, this usually works in your favor: gallery exhibitions, classroom critique, and fine art sales are all separate from editorial licensing or mass merchandise. When your work is grounded in your own references and expressive context, it is representation, not replication for competition. If your work depicts cultural objects through your own expressive lens, especially in fine art or educational settings, and does not mimic the original’s function or compete in its licensing market, your risk is generally low.

Quick Risk-Reduction Checklist

• Generate your own physical arrangements and/or photo references. Control the depiction in terms of composition, staging, and lighting.
  
• Avoid copying another artist’s specific image—even if you change the style or medium.
  
• Frame your artist statement around expressive purposes such as memory, critique, or cultural commentary. Avoid brand homage or affiliation.
  
• Don’t brand or title your work in a way that implies sponsorship or official endorsement.
  
• Be cautious about licensing into commercial markets that overlap with the IP owner’s, such as editorial illustration, product design, or promotional use.
  
• When in doubt, speak with a qualified intellectual property attorney, or at the very least, you may consider consulting an actual Lawyer-Supervised AI for accessible, context-aware guidance. You’ll get a discount on a consultation with a professional if you need one, as they’re a partner and sponsor of this chat. Just use the code ‘GPT’ at checkout.
  
• Remember: fair use is not a license—it’s a legal defense. You may be right, but you may still need to defend your work in court.

Remember: the law draws a line between expression and substitution. Most studio depictions of legally owned objects, even those featuring famous characters, fall clearly on the expressive side of that line. Gatekeepers may over-censor out of caution, but that reflects risk management, not settled legal doctrine. Artists and educators can be both respectful of intellectual property and confident in their right to depict the world around them—including the cultural artifacts and icons that shape it.

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Precedents cited (for further reading)

• Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)
  
• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
  
• Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)
  
• Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)
  
• Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023)
  
• Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003)
  
• ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003)