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cstanyer
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PostPosted: Wed Apr 23, 2014 9:57 am    Post subject: T Shirt images Reply with quote

I've created an image which is a black/white cutout style image of a footballer that I want to use on a t shirt.

I am unable to post an image on here to show you until I've been a member for 5 days.

I have read that in order to breach image copyright the person I was creating an image of would have to prove that there is some reputation/financial damage along with proof that I was 'passing off' these t shirts as official.

Can I use a disclaimer saying that these are unofficial and no way endorsed by xxx?
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AndyJ
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PostPosted: Wed Apr 23, 2014 11:51 am    Post subject: Reply with quote

Hi and welcome to the forum,
Assuming that you have created the image from scratch and not used a photograph (unless it's one you took yourself) then there shouldn't be any copyright issues.
As you have correctly identified, the main problem would be that of passing off. Passing off is only applicable where the use of the work (here an image) is in the course of trade, which I assume from the wording of your post, is your aim. There doesn't need to be reputational damage to the subject of the image, just the strong implication that he has somehow endorsed or agreed to the use of his image, although often this might well be argued in terms of the fact that the footballer may well have a sponsorship deal with another company, and your use would undermine the exclusivity of such a deal.
There are two court cases which look at this subject, and in both cases the claimant won: Fenty v Topshop [2013] EWHC/Ch/2310 (the Rihanna case) and Irvine v Talksport [2002] EWHC/Ch 367 (the Eddie Irvine case). Although the Eddie Irvine case went to the appeal court, that was only concerned with the amount of damages due to Mr Irvine, and did not overturn the original court's findings on the passing off aspect. I suggest that if you have time, you should read both judgments as that will show you how the courts analyse the facts in such cases, and help you to avoid the pitfalls which led to the defendants losing their cases.
Based on those two cases, I would agree that you need to include a disclaimer both with the tee shirt. and in any advertising or pre-sale descriptions, for instance if you are intending to sell the tee shirts online. If the shirts are being sold face to face with the customer, make sure that the sales person does not say or imply that the shirt is endorsed by the footballer. This was an issue that came up in another passing off case (Arsenal Football Club plc v Reed which you don't need to read) involving Arsenal shirts, where it was suggested that Mr Reed's sales assistants did not always correct customers who thought they were buying genuine Arsenal merchandise.
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cstanyer
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PostPosted: Wed Apr 23, 2014 7:35 pm    Post subject: Reply with quote

Thanks Andy, I had read the details of the Rihanna/TopShop case. In that instance a photograph was used whereas the image I have created is a black and white image in the style of the famous Che Guevara picture (put Che Guevara into google images). I have created half the face to be a likeness of the player and the other half as a robot. I imagine this should be unique enough.

However I am wondering if I didn't use the half-robot scenario and it was the whole face of a famous person if I was allowed to do this or if there was any issue about using the likeness of a celebrity in any way?

Also, are there any recommended wordings for a disclaimer to ensure I stay on the right side of the law?

Many thanks.
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AndyJ
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PostPosted: Wed Apr 23, 2014 8:48 pm    Post subject: Reply with quote

Hi cstanyer,
As Mr Justice Birss said in the Rihanna case, there is no problem about just using someone's likeness in the UK because we don't have a specific privacy law, or a right of publicity which exists is some States in the USA. The only real issue is that of passing off, as discussed in the previous posting.
Traditionally the tort of passing off only applied where one business was trying to trade on the goodwill of another company, and it is only quite recently that this has been extended into the personalities of celebrities etc. To that extent it may well develop into a form of right of publicity one day.
In the mean time it is worth stating that the standard method of analysing a passing off claim is to see if there has been misrepresentation made in the course of trade which leads to confusion in the mind of the buyer or consumer. A disclaimer is intended to tackle the first bit, misrepresentation, because if that cannot be established, the claim will fail. Misrepresentation does not need to be either deliberate or done in bad faith, but a clear disclaimer which the customer can easily see will remove any doubt about whether or not that your product is endorsed by the footballer.
That is is entirely separate from the fact that many buyers may be drawn to the tee shirt because they are fans of the player or his club, and wish to have a memento.
The actual words can be fairly short and to the point "this product is not endorsed, licensed or authorised by XX". That has the twofold effect of acting as a disclaimer, and alerting the potential buyer that the person portrayed is XX, in case they were in any doubt. The key is that the wording must be prominent enough that the averagely attentive shopper (whether online or in person) would see it before they make the decision to buy.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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