Can I ask if this is legally possible

'Is it legal', 'can I do this' type questions and discussions.
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Can I ask if this is legally possible

Post by Mattsmum »

Can I digitally produce say an image of Run DMC wearing Adidas for a t-shirt to sell on.

The image will be produced from memory not directly copied from a photo. Where do I stand incorporating Adidas into the image?

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Re: Can I ask if this is legally possible

Post by AndyJ »

Hi Mattsmum and welcome,

Provided that the image of Run-DMC was entirely your own creation then there shouldn't be any copyright issues with this. The same applies to the depiction of clothing or footwear. However using an Adidas trademark is the part where it gets tricky. This arises not because of trade mark law itself, as I don't think this would amount to infringement, at least under UK law. The problem comes from a possible implied endorsement of Adidias by Run-DMC. Run-DMC could object to this false endorsement and bring a claim under both UK and US law. In the UK the primary caselaw for such a claim would be Irvine v Talksport. In the USA such claims would arise from the various state laws governing the right of publicity. Since Run-DMC are based in New York, I will link to that state's law on the subject. However many other states have substantially similar laws.

I appreciate that you have used Run-DMC and Adidas as examples, but much the same problem would arise with any well known individuals/band and a commercial product identifiable through the use of logos. Much will depend on your motivation. If, for example, your purpose was to create a parody (not just comic amusement) then in the UK at least you might have a defence, although since a claim would be based on the common law tort of passing off, which is not statute law, you would need to be able to convince a court that there was an absence of the second factor required in passing off claims, namely the misrepresentation element. For more on passing off, see this article: Passing Off explained

I hope this clarifies things for you.
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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