# Legal question!!



## lou1ki11 (May 29, 2011)

i am new to this whole t-shirt thing, but have a quick question. I am an artist and wanted to draw pro athletes and put it on a tshirt and sell them. my idea is to draw them in an cartoon type style. Can this be done to sell or not. Im pretty sure that if they the pictures of the athletes have they're jerseys on that would probably be a problem. Can i do this? if not, is there a way around it? thank you.


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## Louie2010 (Feb 26, 2010)

Sorry, but this would be illegal to do and not really any way around it, unless you are a very bad artist

PS: Welcome to the forum.


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## lou1ki11 (May 29, 2011)

is it illegal because the pro athletes (players) are owned by an organization?


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## Louie2010 (Feb 26, 2010)

It is illegal because you wouldn't have permission to profit from their likeness. If you did so without their permission they could sue you.


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## binki (Jul 16, 2006)

dude you are so asking for a lawsuit.


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## royalpar1 (Apr 30, 2009)

lou1ki11 said:


> i am new to this whole t-shirt thing, but have a quick question. I am an artist and wanted to draw pro athletes and put it on a tshirt and sell them. my idea is to draw them in an cartoon type style. Can this be done to sell or not. Im pretty sure that if they the pictures of the athletes have they're jerseys on that would probably be a problem. Can i do this? if not, is there a way around it? thank you.


I would check with a trademark / copyright attorney, however the likeness of the player is probably public domain. However you would not be able to display any of the team or league names. i.e you could take a photgraph from the internet or newspaper of our president and put it on a t shirt without a issue. especially if it is original art, however if you are copying someones work you run into tradedress issues.


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## binki (Jul 16, 2006)

royalpar1 said:


> I would check with a trademark / copyright attorney, however the likeness of the player is probably public domain. However you would not be able to display any of the team or league names. i.e you could take a photgraph from the internet or newspaper of our president and put it on a t shirt without a issue. especially if it is original art, however if you are copying someones work you run into tradedress issues.


what law school did you go to? worst advice on the planet next to charlie sheen going awol on a $2 million/week gig. celebs (that includes sports figures) have a right to their image and likeness. 

political folks are a different story completely. 

also, trademark and copyright are too different things. you are confusing them.

use a celeb without permission and you will be in court and paying damages, period.


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## royalpar1 (Apr 30, 2009)

binki said:


> what law school did you go to? worst advice on the planet next to charlie sheen going awol on a $2 million/week gig. celebs (that includes sports figures) have a right to their image and likeness.
> 
> political folks are a different story completely.
> 
> ...


Probably the same law school you went to. However I said check with a trademark/ copyright attorney. Perhaps my law school taught me to read. 
Celebrity become public domain, and if its original art, he could probably draw it. Check with your local newspaper and notice the cartoon section. check with your jon stewart report and see what they say about people. Again, check with a Trademark/Copywrite attorney for guidance is the absolute best response. Period.


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## royalpar1 (Apr 30, 2009)

The hallmark of a Lanham Act suit is proof of the likelihood of confusion, which occurs "when consumers make an incorrect mental association between the involved commercial products or their producers." San Francisco Arts & Athletics, Inc. v. United States [*967] Olympic Comm., 483 U.S. 522, 564, 97 L. Ed. 2d 427, 107 S. Ct. 2971 (1987) (Brennan, J., dissenting), quoted with approval in Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1484 (10th Cir. 1987).
Likelihood of confusion is a question of fact that we review for clear error. Jordache, 828 F.2d at 1484. The district court found that Cardtoons' parody cards created no likelihood of confusion. We agree that no one would mistake MLBPA and its members as anything other than the targets of the parody cards. Most of the cards have a Cardtoons logo and a statement that they are not licensed by MLBPA. In addition, as with all successful parodies, the effect of the cards is to amuse rather than confuse. "A parody relies upon a difference from the original mark, presumably [**19] a humorous difference, in order to produce its desired effect." Id. at 1486 (emphasis added). Cardtoons' success depends upon the humorous association of its parody cards with traditional, licensed baseball cards, not upon public confusion as to the source of the cards. The district court's decision that the parody cards do not create a likelihood of confusion is not clearly erroneous, and thus the cards do not infringe upon MLBPA's property rights under the Lanham Act.

Again, please speak to your attorney for the legal advice.


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## kimura-mma (Jul 26, 2008)

lou1ki11 said:


> is it illegal because the pro athletes (players) are owned by an organization?


It is illegal for several reasons.

Trademark:
Team marks are owned by the organizations and are licensed through MLB and the MLBPA. Any usage of team or league marks without permission would be intellectual property infringement.

Copyright:
The photographer (or the company they work for) owns the rights to the images. So if you based your artwork on a photo taken by someone else without permission, you would violating that copyright.

Right of publicity:
All people have the exclusive right to profit off their own name and likeness. Any usage without permission is a violation of these civic rights and you could be sued.

Licensing:
Official sports licensed merchandise is a multi billion dollar industry. The league has a responsibility to its licensees to protect the usage and value of team marks and player name and likenesses.


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## kimura-mma (Jul 26, 2008)

royalpar1 said:


> however the likeness of the player is probably public domain.


Two issues here.

First, public domain refers to copyright ownership of a particular image. Professional sports leagues specifically limit field-level credentialed photographers for the purpose of controlling the copyright ownership of all player images. The leagues own the copyright to the images and certainly do not release any of it to the public domain. They do, however, license it for profit.

Second, the likeness of a player is definitely not public domain. In fact, Right of Publicity laws protect just the opposite. These laws grant all people the exclusive right to profit off their own name and likeness for use on merchandise. Athletes do not release their likeness to the public domain. If anything, these rights are controlled by the league and players association based on the merchandising aspect of the collective bargaining agreement. 



royalpar1 said:


> you could take a photgraph from the internet or newspaper of our president and put it on a t shirt without a issue.


Politicians are the exception to the rule.

While elected officials don't actually give up their Right of Publicity when they take office, they rarely take legal action against these civil rights violations because they do not want the public backlash.

Celebrities are different. They very often sue for Right of Publicity violations.


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## kimura-mma (Jul 26, 2008)

royalpar1 said:


> Celebrity become public domain, and if its original art, he could probably draw it. Check with your local newspaper and notice the cartoon section. check with your jon stewart report and see what they say about people.


I believe you are confusing Right to Privacy and Right of Publicity.

Celebrities lose certain privacy rights because of the celebrity status. And that is why you see them in newspapers, on tv, etc. Whether it is in good light or bad light, the laws are different when newspapers and tv report "news" (legally defined as educational or informational).

But when a person's name and likeness is used on merchandise, the usage is governed under Right of Publicity laws. As mentioned, this grants people the exclusive rights to their own name and likeness. Celebrities just do not become public domain and lose publicity rights the way they may lose privacy rights.


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## kimura-mma (Jul 26, 2008)

royalpar1 said:


> Cardtoons' success depends upon the humorous association of its parody cards with traditional, licensed baseball cards, not upon public confusion as to the source of the cards. The district court's decision that the parody cards do not create a likelihood of confusion is not clearly erroneous, and thus the cards do not infringe upon MLBPA's property rights under the Lanham Act.


Parody or Fair Use is a defense to an action, not a license to infringe. No one should ever believe that what they are doing is legal and risk-free simply because they believe they are creating a parody. Even when creating a parody, there are risks to be sued. And these risks should be understood and considered when proceeding with that type of artwork.


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## royalpar1 (Apr 30, 2009)

kimura-mma said:


> Parody or Fair Use is a defense to an action, not a license to infringe. No one should ever believe that what they are doing is legal and risk-free simply because they believe they are creating a parody. Even when creating a parody, there are risks to be sued. And these risks should be understood and considered when proceeding with that type of artwork.


Thank you for the well written response and clarification


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## binki (Jul 16, 2006)

royalpar1 said:


> ... Check with your local newspaper and notice the cartoon section. check with your jon stewart report and see what they say about people. ...


parody is not what was being asked and is permitted but could result in a legal action. and yes, checking with an attorney is a good idea. we have one that specializes in this area. 

lots of good information in this thread, it should be made a sticky....


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