# my brand is based on the silhouette of a celebrity - should I be worried?



## Glenboy (Feb 6, 2012)

Hi

Im in the process of starting my t-shirt business and have spent the last 4 months designing shirts, researching equipment and garments, planning a marketing strategy and most importantly Branding my company, This is where im worried!

I have a business name and purchased the .com and .co.uk domain names, I then set to work on designing a logo.
I came up with a design that I was super happy with and it represents my company perfectly.

Now here's the problem.........

The name for my business is simple and totally says what my business is all about but it also refers to a certain celebrity. 
My logo is just text but with a cartoon type plain black Silhouette that bares a resemblance to said celebrity and im not sure if this is gonna be a problem.
It is not a picture of a celebrity and not even a cartoon with features or anything, just a Silhouette that combined with the text makes an obvious reference
But legally im not sure if an image that could be something because it resembles it loosley would be subject to copyrite infringement when it is also clearly relevant to what my business is.


This probably makes no sense to anybody and i know your gonna say you cant tell without seeing the image or knowing who im talking about but i want to keep my brand under wraps until im ready to launch

I you do have any idea what im on about please advise

Thanks guys

Glenboy


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## tcrowder (Apr 27, 2006)

Glenboy said:


> Hi
> 
> 
> just a Silhouette that combined with the text makes an obvious reference


And you still need to ask?????


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## Louie2010 (Feb 26, 2010)

tcrowder said:


> And you still need to ask?????


Simple direct and to the point answer. Nothing I can add to that, but wanted to agree.


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## neilb (Jan 14, 2012)

I don't see where the problem with the silhouette would be, if a photographer takes a picture of a celebrity the photographer owns the copyrite not the celebrity.

The problems would arise I think if it was seen that your name inferred some sort of endorsement by the celebrity.


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## Louie2010 (Feb 26, 2010)

neilb said:


> I don't see where the problem with the silhouette would be, if a photographer takes a picture of a celebrity the photographer owns the copyrite not the celebrity.
> 
> The problems would arise I think if it was seen that your name inferred some sort of endorsement by the celebrity.


 
IMO, here is the problem:

_"combined with the text makes an obvious reference"_

Then add the fact that he/she will be profiting off of the celebrity likeness would be the issue.


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## neilb (Jan 14, 2012)

Louie2010 said:


> IMO, here is the problem:
> 
> _"combined with the text makes an obvious reference"_
> 
> Then add the fact that he/she will be profiting off of the celebrity likeness would be the issue.


But again making reference to a celebrity is not a copyrite issue, as I said implying some sort of celebrity endorsement would be where problems would arise.


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## Louie2010 (Feb 26, 2010)

neilb said:


> But again making reference to a celebrity is not a copyrite issue, as I said implying some sort of celebrity endorsement would be where problems would arise.


 
I could be wrong, but I believe profiting off of a celebrities likeness without permission is also illegal.


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## neilb (Jan 14, 2012)

Louie2010 said:


> I could be wrong, but I believe profiting off of a celebrities likeness without permission is also illegal.


If that was true there would be no 'candid', pictures of celebrities in the media at all.


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## Louie2010 (Feb 26, 2010)

neilb said:


> If that was true there would be no 'candid', pictures of celebrities in the media at all.


The media is considered news, which is very different then putting a celebrities likeness on a product and then selling it.


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## neilb (Jan 14, 2012)

Louie2010 said:


> The media is considered news, which is very different then putting a celebrities likeness on a product and then selling it.


Not all media can be considered news but I agree that selling products using a celebrities image could cause problems .

My point from the start as I said was that it isn't a copyrite issue.


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## Glenboy (Feb 6, 2012)

so could there be some sort of disclaimer stating that it has no connection or endorsement from said celebrity?


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## Enrique (Apr 27, 2011)

Why would you do this at all? If I'm starting a business and it has nothing to do with a celeb, why the hell would I even HINT at the celeb? If you're doing it just to get noticed, it pretty much tells me your product/service is not worthy of notice by itself.

And yes, you will get sued if the celeb gets wind of it. You have to have someone's permission, celeb or not, to use their name and/or likeness. If it even KIND OF looks or sounds like them, you will get in trouble. There have been numerous instances of celebs suing because someone did a parody of them or had an impersonator in their commercial, etc.


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## kimura-mma (Jul 26, 2008)

neilb said:


> I don't see where the problem with the silhouette would be, if a photographer takes a picture of a celebrity the photographer owns the copyrite not the celebrity.


If the silhouette originated from a copyrighted photo, then the photographer can still take action to protect their intellectual property. It doesn't matter that the image has been changed.



neilb said:


> But again making reference to a celebrity is not a copyrite issue, as I said implying some sort of celebrity endorsement would be where problems would arise.


Correct, the use of the celebrity's likeness is not a copyright issue. But in the US, there are Right of Publicity laws that make the unauthorized use of a person's likeness illegal.

Right of Publicity grants each person the exclusive right to profit off their own name and likeness on merchandise. The OP should look into similar laws in the UK.



neilb said:


> Not all media can be considered news


In the eye of the law, it is. When a photo gets published to a newspaper, magazine, website, etc (including tabloids), the law considers this a form of communication. This is why the paparazzi can legally take and sell their photographs.

But when an image is printed on a t-shirt, it is considered a salable good. And salable goods are governed under the Lanham Act which protects against intellectual property infringement.


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## kimura-mma (Jul 26, 2008)

Glenboy said:


> so could there be some sort of disclaimer stating that it has no connection or endorsement from said celebrity?


No, this would not make it legal to infringe on intellectual property (including Right of Publicity).


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## neilb (Jan 14, 2012)

kimura-mma said:


> If the silhouette originated from a copyrighted photo, then the photographer can still take action to protect their intellectual property. It doesn't matter that the image has been changed.


I agree but as the op clearly states


> a cartoon type plain black Silhouette


I take it that is not the case.


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## Glenboy (Feb 6, 2012)

yer, This is not an image that has been produced from tracing a Silhouette from another picture it is my own artwork and a cartoon Silhouette. it does not in any way resemble an actual photo of a celebrity


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## taricp35 (Dec 10, 2008)

Glenboy said:


> The name for my business is simple and totally says what my business is all about but it also refers to a certain celebrity.
> My logo is just text but with a cartoon type plain black Silhouette that bares a resemblance to said celebrity......


I think you have received the best answer to your question as Tim is very knowledgeable in this area. Since you still need clarification I think you need to (dare I say it) contact an Attorney! Your brand refers to a celebrity, the design resembles said celebrity, be prepared for a possible lawsuit from this celebrity. It may happen, it may not but do you want to take that risk? Does not matter if the design is a red dot that you sketched by hand if the celebrity wants to file a suit he/she can and it will be up to a judge to decide for which you will have to spend money defending. LIG!


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## Louie2010 (Feb 26, 2010)

taricp35 said:


> Since you still need clarification I think you need to (dare I say it) contact an Attorney!


Best advise yet.


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## Glenboy (Feb 6, 2012)

Thanx for all the opinions,

I will obviously be looking into this further and researching the laws in the uk etc

this is not any infringement on intellectual property because its been created by me and doesnt resemble any existing photo or artwork out there.

Its just the fact that it is a loose likeness of a famous person and thats what i need to look into.

Will let you all know how it goes

Glenboy


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## Louie2010 (Feb 26, 2010)

Glenboy said:


> Its just the fact that it is a loose likeness of a famous person and thats what i need to look into.


When you look into it keep in mind that you said when combined with the text it was an "obvious reference" and no longer a "loose likeness".

Good Luck with your venture


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## Glenboy (Feb 6, 2012)

Yer all worst case scenarios will be explored and i do have the contact details for the agent of the celeb so if all else fails i will be contacting them to get permissions

Cheers


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## Louie2010 (Feb 26, 2010)

For what is is worth (probably not much ) If it were me and I really believed in this idea, I would consult an attorney before I asked permission from the celebrity. Work with an attorney on what would be acceptable , something he was confident he could defend in court. Then if after having consulted with him weigh your risks and possible legal expenses (if sued) and then if you still are convinced in the idea go for it. 

If you ask permission first you likely will be turned down, and then would have put yourself in a worse position to move forward.

Seriously good luck as you move forward with this. I hope it works out for you.


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## Glenboy (Feb 6, 2012)

Thanks for the advice

Taking legal advice first is probably best I agree

I do really believe in my brand and think it could be big so is worth the costs

I could be wrong and it could all go horribly wrong for me but in true British spirit......WHO DARES WINS lol


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## royster13 (Aug 14, 2007)

Remember that legal advice is just an educated guess.....Your lawyer may only be 1% wrong and you end up in a bad place......And even if you do nothing wrong, IP costs a lot to win.....Sometimes even someone with a losing case can win if they outspend and outlast the other side.....


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## kimura-mma (Jul 26, 2008)

Let's put the legal issue aside for a moment and think about the business aspect.

If you believe the brand can stand on it's own, then re-work the creative concept so that it's more original and does not associate with a famous person. This way you can launch the brand without the concerns of legal issues.

But if the brand requires an association to a famous person to be successful, then you will always be operating with some level of risk. Even if what you're doing is legal, the famous person can still take action... maybe they want to shut you down, maybe they just want to tie you up in court, maybe they want to collect damages or royalties. Maybe they win, maybe you win. But the risk makes this a very unstable business model.

So even when looking past the legal aspect, there is still the risk/reward equation. If the reward outweighs the risk, that's cool. But at least you're going into it having considered all consequences.


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## Glenboy (Feb 6, 2012)

I am a one man band and upon starting my business it will be home based and with only me doing all work. every company has to start somwhere, I have applied for trademark registration but if this logo issue is going to be a problem hopefully just being a small company will keep me under the radar, if my brand takes off and gains regonition in the uk and overseas my business would obviously be doing well and be in a position to try and defend its trademark against objections.

Im not saying im gonna just do it without thinking, but I think its gonna be all about making a judgment on how to proceed based on all information gathered from people like yourselves, case studies and legal advice.


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## Glenboy (Feb 6, 2012)

Thanx for all the advice Tim

Appreciate your input


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## royster13 (Aug 14, 2007)

Glenboy said:


> hopefully just being a small company will keep me under the radar


With the internet and sites like Google Image search, no one flys under the radar anymore....


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## Glenboy (Feb 6, 2012)

yes but if you google image search for any celeb you get millions of pics that are not all approved by the person in question, do these people pursue a legal case for every single use of there image/likeness etc.....Surely not!?


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## royster13 (Aug 14, 2007)

It is starting to sound like you are just looking for answers you like.....Good luck!....


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## taricp35 (Dec 10, 2008)

Glenboy said:


> yes but if you google image search for any celeb you get millions of pics that are not all approved by the person in question, do these people pursue a legal case for every single use of there image/likeness etc.....Surely not!?


You are correct Google any celebrity and you will find tons of pics, but how many will you find on salable goods? 

This goes back to what Tim posted earlier:


> In the eye of the law, it is. When a photo gets published to a newspaper, magazine, website, etc (including tabloids), the law considers this a form of communication. This is why the paparazzi can legally take and sell their photographs.
> 
> But when an image is printed on a t-shirt, it is considered a salable good. And salable goods are governed under the Lanham Act which protects against intellectual property infringement.


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## royster13 (Aug 14, 2007)

It is important to remember the OP is in the UK so US laws are not relevant.....


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## tcrowder (Apr 27, 2006)

royster13 said:


> It is starting to sound like you are just looking for answers you like.....Good luck!....


Thats why I only posted the one reply here. This type of question is only asked trying to make someone feel okay with doing something they already know is wrong.


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## Glenboy (Feb 6, 2012)

Lots on saleable goods ive seen and on inspecting various websites I cant find anything that refers to genuine or licensed product in the description, do they have to display that info if it has the ip owners approval?


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## Glenboy (Feb 6, 2012)

Thank you for all opinions and i take them all on board

this is not about getting the answer i want to hear its about putting my thoughts on the matter on here and getting the opinions of people, and hearing potential pitfalls that i hadnt considered and give me the best possible chance of coming to the right conclusion im comfortable with

Thank you all


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## charles95405 (Feb 1, 2007)

This is an issue to discuss with an IP attorney not a forum BUT...having said that I certainly agree with Tim...He is probably the best informed on this issue than most of us on the forum.

Why start a business on shakey grounds?


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## kimura-mma (Jul 26, 2008)

Glenboy said:


> Lots on saleable goods ive seen and on inspecting various websites I cant find anything that refers to genuine or licensed product in the description, do they have to display that info if it has the ip owners approval?


It is usually not a requirement to state that the merchandise is officially licensed. But it would certainly be a good marketing strategy. So it is pretty common that if anyone is producing and selling licensed merchandise, they would display that info.

There is plenty of licensed merch out there. And there is plenty of unlicensed merch as well. Finding it through Google does not tell the legal story. At the end of the day, you need to make your own decision, not base it on what others are doing.

It is also very important to make this distinction...
You are not just putting a silhouette on a shirt and selling it. You are actually branding an entire product line based on an association with the celebrity. The purpose of a trademark (brand name or logo) is to identify a source of goods. So if the source of the goods is associated with the celebrity, it is logical to think the consumer market would be confused into believing the product is officially licensed. This confusion would be the basis of infringement.


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## Glenboy (Feb 6, 2012)

Thanx tim

That does make sense

I am quite happy to pay royalties to a celeb if my image were to be regarded as IP of them, i just dont want to offer it if its not necessary.

have found an IP lawyer in my city and will be seeking there advice this week


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## kimura-mma (Jul 26, 2008)

No prob, Glen. Let us know how it turns out. Would be interesting to hear what the attorney has to say about it.


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## WikiThreads (Apr 2, 2011)

I agree with the consensus here. Based on your degree of concern, it sounds like you are too close to the celebrity. "I pity the fool that steals my brand." (Just a wild guess).

Also, there are a few comments about the issue of potentially violating a photographer's copyright. Interestingly enough, the designer of the famous 2008 Obama "hope" poster was recently found guilty of violating a wire service copyright to a photo of Obama. Obama 'HOPE' poster artist pleads guilty to contempt

The fact that you are worried tells you what you need to do. At least you can probably still keep the URLs. It's just a logo issue.


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## kimura-mma (Jul 26, 2008)

For what it's worth, Shepard Fairey was not actually found guilty of copyright infringement. They settled the copyright case out of court. The article you linked was a subsequent case where Fairey plead guilty to criminal contempt.

Your point is still well made though. The use of copyrighted material got him into plenty of trouble. Not only did he end up having to pay damages to the Associated Press, but he also got brought up on additional charges that he now faces potential jail time for.


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## jolenes (May 26, 2013)

One quick question - I have a photo with our national football player and I started to run a t-shirt business. Can I photoshop that photo in a way to change HIS t-shirt (that he wears on the photo) for MINE design?

EXAMPLE: he's wearing white tee with a banana. Can I change that tee to a black tee with a diamond, which is mine design?


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## kimura-mma (Jul 26, 2008)

jolenes said:


> One quick question - I have a photo with our national football player and I started to run a t-shirt business. Can I photoshop that photo in a way to change HIS t-shirt (that he wears on the photo) for MINE design?
> 
> EXAMPLE: he's wearing white tee with a banana. Can I change that tee to a black tee with a diamond, which is mine design?


If you're using the player to market your business, you should get permission first. Otherwise, you could be sued.


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## SquidyDCA (Nov 27, 2013)

You should be pretty safe using a silhouette because of parody and fair use laws.
According to Copyright Act of 1976 17 U.S.C. § 107:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4)the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Basically, if you are doing nothing that infringes on the celebrity's ability to make money off themselves and not copying their work/image exactly you should be protected by fair use laws.


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## SquidyDCA (Nov 27, 2013)

jolenes said:


> One quick question - I have a photo with our national football player and I started to run a t-shirt business. Can I photoshop that photo in a way to change HIS t-shirt (that he wears on the photo) for MINE design?
> 
> EXAMPLE: he's wearing white tee with a banana. Can I change that tee to a black tee with a diamond, which is mine design?


That could get you in trouble. When this pic of him was taken he signed paperwork that gave the photographer permission to use his exact image, you do not have his permission. Furthermore, if you use his image in this manner it could look like he is endorsing your product, sense he's probably never heard of you that could constitute false advertising and that could get you into trouble.


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## jolenes (May 26, 2013)

I wouldn't do anything with that photo but ONLY post it on social media. Later on, delete it (a few days/a month). I also know for a few brands who did that + they were in online magazines about that and nothing happened so I'm a bit confused...


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## jolenes (May 26, 2013)

*SquidyDCA* it wasn't a photographer but my friend took a photo. What is more, a photo is so changed that is hard to recognize/prove anything actually...


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## kimura-mma (Jul 26, 2008)

jolenes said:


> I wouldn't do anything with that photo but ONLY post it on social media.


Using it on social media would be considered marketing your brand. You would need permission from the athlete to use their likeness for promotional gain.



jolenes said:


> Later on, delete it (a few days/a month).


If you delete it before you get sued, then it's fine. But if you get caught, you could be sued.



jolenes said:


> I also know for a few brands who did that + they were in online magazines about that and nothing happened so I'm a bit confused...


Maybe what they did was legit. Maybe it was illegal. Impossible for anyone to know for sure.

But you can't take a photo and edit it for the purpose of deceiving the public into believing an athlete endorses your brand. Their likeness is protected by Right of Publicity laws.


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## kimura-mma (Jul 26, 2008)

jolenes said:


> What is more, a photo is so changed that is hard to recognize/prove anything actually...


Are you suggesting that the athlete won't be able to prove that you illegally used their likeness to endorse your brand?


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## ClutchInc (Dec 5, 2012)

Truth is, if its just a silhouette, it could be anyone or, for that matter, anyTHING. I guess it really comes down to the text. We don't know what it is and that could make all the difference in the world. Its kind of like having a silhouette of Lincoln with a brand name of "Four Score". I dont see an issue with that and I dont think it really breaks any protocol at all....

Consider this: If I had a silhouette of a bee that was the exact shape as the Cheerios bee, could they really do anything? No, they couldnt. But, if my tag line was something like "Im Cheerio For This", then there would be some questioning needed. Make any sense?


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## jolenes (May 26, 2013)

I don't see any problem here. If something would happen, I can simply say that a fan send me a photo, I'd apologize and delete it.

?


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## kimura-mma (Jul 26, 2008)

jolenes said:


> I don't see any problem here. If something would happen, I can simply say that a fan send me a photo, I'd apologize and delete it.


You don't see a problem because you don't want to see it. Which is fine, it's your decision. Go ahead and post the photo. If you get away with it, that's great. If not, you'll learn a lesson the hard way. There's no way of knowing what the outcome will be. But you seem willing to take the risk, so that's all that counts.


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