Recreating old (often defunct) clothing/logo designs

Tracing copyright owners and asking permission.
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Tonicuk
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Recreating old (often defunct) clothing/logo designs

Post by Tonicuk » Tue Dec 26, 2017 8:21 pm

Hello,

I've had an idea that has stemmed off of an interest of mine. However, there are 3 aspects that I am worried about.

I wish to recreate old clothing logos that were worn by (now) well known individuals between the 70s-90s. A lot of the clothing wasn't produced by large companies as I can't find any other pictures of this logo being used anywhere on the net.

The first problem that I thought of, is that a lot of these companies are defunct. If I was to recreate a logo using photoshop, would there be any infringement of copyright? If so, how would I go about trying to trace ownership of the logo/design? And at which point would it be reasonable to use a disclaimer stating that "I have used all reasonable means to trace the copyright owner..."

Secondly, is there any problem with using a picture and/or name of a person (for instance, Arnold Schwarzenegger) for purposes of advertising/selling the product. For example, I would have a picture of Arnold Schwarzenegger wearing the clothing and have a link to buy the recreated tshirt

Finally, there are designs/logos that were created by individuals who are still alive and kicking but no longer produce or use the specific logo.

Im sure I am not the first to do something like this, if anybody is able to talk from experience that would be great.

Thank you in advance!

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AndyJ
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Re: Recreating old (often defunct) clothing/logo designs

Post by AndyJ » Fri Dec 29, 2017 12:28 pm

Hi Tonicuk,

Assuming that the products bearing the logos you are interested in haven't been on sale for more than 10 years, it is unlikely that any trade mark protection remains even if they were once registered. However you need to be cautious about this, and check with the IPO trade mark database about the claimed status of each mark. This may also assist you in locating the current owner of any copyright.

These logos will still be covered by copyright as copyright lasts for the lifetime of the artist who created the artwork, plus a further 70 years. However the artist is unlikely to be the current owner of the copyright, which will probably reside with the company which produced the goods, or their successors.

Even though companies go out of business, in many cases their assets, including the intellectual property, are bought up by other companies. And even if that didn't happen in the case of the logos you are interested in, the copyright still exists. Therefore copying the artwork could well infringe the copyright. As I understand it, you wish to recreate clothing bearing the logos for commercial sale, and so none of the exceptions will apply. If, after an exhaustive search, you really can't find a current owner, you may be able to obtain an orphan works licence to use the logos. More details here. Clothing can be protected by something called design right, but as the protection for registered design right only lasts for 25 years, it is unlikely to be relevant here.

The next question raises several issues. Firstly you should not just use an image of a celebrity you find on the internet without permission, as the photograph will also be protected by copyright. Then once you have a legitimate image, pairing it with a logo or product introduces the concept of endorsement. You would be, in effect, inviting people to understand that the celebrity somehow approves of or endorses the product, and the celebrity may well complain about this. There are much more rigid rules about this in the USA (see the California Celebrity Rights Act for example), but they could also take action here in the UK using the common law tort of passing off. As you appear to be embarking on a commercial venture, this greatly increases the chances of receiving a lawyer's letter. Whilst a disclaimer won't help over the copyright issues covered in the previous paragraphs, a suitable disclaimer, disassociating the celebrity from the logo/product may get you out of trouble as far as passing off is concerned, that is unlikely to help with the so-called publicity right legislation mentioned above.
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

Tonicuk
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Re: Recreating old (often defunct) clothing/logo designs

Post by Tonicuk » Thu Jan 04, 2018 10:25 pm

Hi AndyJ,

Thank you for the comprehensive response! It seems there are a few (large) hurdles to jump in order to even consider getting my idea off of the ground.

I've had a quick browse of the website and it does seem that a few of the newer logos/prints are registered on the IPO trade mark database.
I am assuming that if nothing comes up, it is not trade marked and therefor free to use without stepping on any toes? Also, where old designs are involved, there are often no brands or logos printed in text for me to search for and are just a printed image. Is there any way for me to conduct an image search for these logos?

To be honest, as a business venture, I don't think it is worth the time and effort trying to find the owner of a grainy picture from the 70s and somehow getting in touch with the celeb to grant me permission to use their name and face.

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Re: Recreating old (often defunct) clothing/logo designs

Post by AndyJ » Fri Jan 05, 2018 8:25 am

Hi again Tonicuk,
The most practical way to search for graphic trade marks is to use the main keyword(s) associated with the mark. In most cases this will be the brand name. To do this you need to select 'word or image' in the first box and then specify the keyword or words you associate with the mark. Make sure you limit the date range to as narrow a window as you can (see below).

In theory you can just search on the image only option but there are limited ways of describing the graphic and so usually you get too many results, especially if the graphic is abstract (eg the Nike 'swoosh'), and the same applies if you try to search by classification. For instance, all the graphic images in Class 9 Clothing and Textiles, and sub division .03 Clothing, will still run into the thousands.

You can also limit your search by only searching for current (active) marks. Since a trade mark needs to be re-registered every 10 years, any which are defunct will not show up if you limit the search to the last 10 years (eg 1 Jan 2008 - present day). However I wouldn't advise doing this unless it is the only way to get the number of results down below 1000, and then if the image you are seeking doesn't show up, repeat the search for the previous decade (ie 1 Jan 1998 - 1 Jan 2008) just to be sure. As I mentioned in my previous reply, finding the owner of a previously registered mark may assist you with finding the copyright owner, even if the trade mark is no longer current.
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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