Hi Andy, and thanks very much for the reply!AndyJ wrote:(snip)
That said, you know about the three elements generally accepted as being necessary to make out a claim: goodwill, misrepresentation and damage. While most bands will probably be able to establish that they have goodwill among their fans, the other two elements are going to be much harder to establish. Cases like Irvine depended, to a degree, on the misrepresentation aspect of altering the image of Irvine so that he appeared to be holding a radio. Your images alone will not contain any visual element which can be said to deliberately mislead the public, much as with the football scarves in Arsenal v Reed in the passing-off issue, which were held to be no more than tokens of allegiance. And finally it would be hard to argue that there was damage to the goodwill of a band caused by someone else selling tee-shirts. The goodwill would more properly reside in the quality of their music or on-stage performance rather than any memorabilia. Assuming your images do not denigrate the band (which I assume would not be in your company's commercial interests anyway) I think any claimant would have an uphill battle establishing points 2 & 3.
On that basis, I don't think putting the photographer's name on the images really changes things one way or the other, although obviously she may be pleased by it.
I'm really confused now...
I thought that in the Arsenal v Reed case, the reason it was eventually found in favour of Arsenal was that once the merchandise had left the stall, there was no way for a person in the street to know that it wasn't official Arsenal merchandise, and as such it was diluting the public perception of the quality of Arsenal merchandise.
Applying that to our Jane Doe t-shirts, I was working under the assumption that we'd have to make sure that anyone in the street that saw the shirt should be able to tell at a glance that it's a Jane Doe t-shirt rather than a Band-A or Musical-Artist-B t-shirt otherwise we'd similarly be diluting the public perception of the Band-A or Musical Artist B brands.
But you're saying that for musical artists, their goodwill isn't in their merchandising, it's in their music, and so anyone could sell t-shirts of that band, as long as they owned the copyright to the photo they used?
Obviously, I'm delighted if that's the case, I'm just shocked.
Is this how Panini got away with the "Fab Five" Spice Girls' unofficial sticker album?
Presumably putting the name of a band on the t-shirt would be a trademark no-no?
But what about when it's a single person? Picking a name of a random musical celebrity whose name is their "brand" out of the air... let's say Eric Clapton... If we had photos of Eric Clapton, would we be able to make t-shirts of the photos, but with his name on them?