Slogans & Quotes

[Batman]

Hi everyone
This is my first post, so please forgive me if I'm going over old ground. I have looked through the forum posts and found similar topics but I'm a little bit unsure of a couple of aspects and would really appreciate some clarity.
To tell you a little about what I do, I basically sell custom printed clothing and personalised merchandise.
I'm looking to expand further by selling online. I have a passion for football amongst other things and am a qualified football coach at grassroots level.
That's the boring bit over
I have developed a brand centering around girls football and I've been keeping an eye out on what other people are up to.
Now, as I understand from my research so far, you generally can't copyright or trademark a slogan as such, but some slogans are very much associated with certain sports stars, musicians/bands or celebrities. So how is it that people can get away with slogans that, word for word, match those that are commonly used in those contexts. A couple of examples are a t-shirt on ebay is selling with the following lyrics from a song by Queen :

(Image Of A Royal Crown At The Top)
Don't Stop Me Now
I'm Having Such A Good Time
(I'm Having A Ball)

No suggestion or declaration of an officially licenced product.

A second example is the ladies England team goalkeeper, Mary Earps. She is widely known as "Mary Queen Of Stops" due to her amazing shot-stopping aspect of her game.
There is a t-shirt on Etsy that has a commonly found painting of Mary Queen Of Scots who just so happens to be donning an official England 3 Lions crest badge (surely that's a breach of copyright or trademark in itself) and then the slogan on the back "Queen Of Stops".

https://www.etsy.com/uk/listing/1569106 ... ch_click=1

There is also a mug of her that states her name, has an image of her (which looks very likely to be a still from tv footage or a photo, that has clearly had a photoshop filter applied to make it look like a drawing/painting). She's wearing her official goalkeeper shirt complete with 3 lions crest & Nike logo and competition badges) It's clearly like for like copying of her image and using trademark brands logos.

https://www.etsy.com/uk/listing/1575681 ... ch_click=1

Etsy is awash with merch about her, using images of her in official team shirt etc. Some look like artists own impressions, etc., but nothing that declares "Official Merchandise". How are they getting away with it ?

So if I wanted to incorporate "Mary Queen Of Stops" or "Queen Of Stops" in to a design that isn't of her but something else, where would I stand ?

Thanks for getting this far if you have and sorry for waffling on.

Hope to hear from you, as any advice will be so very much appreciated.

[AndyJ]

Hi Batman and welcome to the forum,

As you mention some of the depictions you have described may well infringe some registered trade marks and or copyright protected works. But in both cases it's up to the rights owner to take action to stop this infringement, so maybe in the cases you have seen, the owners either aren't aware or aren't concerned about the low level nuisance. Bear in mind that the actual producers or sellers of these goods may operate outside the UK or EU which makes it more expensive to go after them, and more to the point, to successfully close them down. In many cases these traders just pop up again using a different Etsy or other online account. If you haven't already seen them I suggest you glance through a couple of threads elsewhere on the forums here concerning US law firms who go after these sorts of infringers (see here and here).

The bottom line is that you should not be surprised if a rights owner comes after you if you did use their intellectual property in this manner, but it doesn't automatically follow that you will get pursued over every borderline creative decision. For example to prove trade mark infringement in the UK the rights owner needs to show that the alleged infringing version of the mark was being used in the course of trade in a manner that would confuse the buying public as to the origin of the goods in question. While there is no exception to trade mark law for parody per se, if the use is clearly parody then the buying public are much less likely to be confused into thinking that the product has been authorised by the trade mark owner. There is a well known saying in legal circles that trademark law is not there to cater for the attention span of a 'moron in a hurry' and the courts credit the buying public with a reasonable amount of common sense.

Copyright law does provide an exception for parody, pastiche and caricature, and so not all uses, such as the ones you mention, are automatically infringing. That said, this is an area of the law where there hasn't been a lot of recent precedence from which we can say that the boundaries are well-marked. A couple of relatively recent examples from either side of the Atlantic illustrate this: Pringles wine glases and the protection afforded to wellknown TV characters.

[Batman]

Hi Andy,
Thanks so much for taking the time to put together an informative reply.
Since your message, I've looked in to it further to try and understand more of what you've said.
I'm following what you said about the established marks and whether it's worth their while persuing after, and it made interesting reading about the US law firms that came after certain infringements. With regards the Etsy shop of the Old Music Paper Adverts, I did wonder though, because it didn't seem to make it clear, was the offending party not "warned of potential legal action" if they didn't cease all actions in relation to the copyright infringement with immediate effect, firstly, or was it as simple as they were just slapped with a bill for costs and damages from the outset. Seems a bit harsh really I know that in the grand scheme of things, infringement is wron, and if a lot of money is made off the back of it, then legal proceedings work carry more weight I guess. But for the sake of only making £200, one would have thought a firm warning to cease with immediate effect would have been more reasonable.

With regards the examples I highlighted of the t-shirt with Queen lyrics and the mug of Mary Earps, I did some more reading up on the "parody, pastiche and caricature" exceptions, and that still seems to be one hell of a minefield. It's certainly not straight forward to me and feels very much like something that is open to interpretation in the eyes of the legal system. So if I were to make certain choices based upon how I felt I understood the legalities and issues, I still would most likely fall foul.
In my eyes, and limited understanding, I would say that for example, the Queen lyrics t-shirt falls within pastiche because its using a limited amount of someone else's work in a respectful way, albeit a word for word copy of 3 lines of lyrics from an entire song, but there is no humour there.

The example of the mug with Mary Earps and the expletive used, maybe that falls within parody, because it makes light of the fact that she really did say that at the time, and to some, it does indeed incorporate an element of humour. But where I struggle to understand fully from a legal point, is that it's blatantly recogniseable as Mary, despite her not being a trademarked entity, and I would bet my last penny tat the image used was originally a photo or tv footage still that has had a photoshop filter applied to it. I've turned photos in to stylized images plenty of times using PS, to me it's obvious. So that doesn't fall within the caricature element, because to me, a caricature is an image created that over amplifies certain charachteristics of a persons features, a lot like the pieces of artwork of famous people you see being drawn and sold by artists on the streets in major cities etc. The image on the mug certainly doesn't fit my definition of caricature. I'm guessing that, unless Mary objects to such things being created and sold, this is how people are getting away with it, or is it a simple fact that being a famous face isn't enough to sue someone for damages for selling merch with their faces on unless it's defamatory or libel? In which case, I'm guessing there's nothing stopping me from producing something similar and throwing in the slogan "Mary Queen Of Stops" in to the design for good measure !
It's mind bending !! LOL

The examples of Del Boy from OFAH, made my head implode !! I kind of got it, understood bits, but the majority just went straight over my head. To me, it wasn't that easy to fully understand.
The pringles one was a shame, cos I thought it was a great idea and was well funny, but I think I understand why that one is a definite no go.
I don't get why the Louis Vitton example got away with it, and the DAD in the Superman shape logo was deemed an infringement. It loosely resembles the Superman Logo, but in no way causes confusion as to the real logo because to me, as a massive DC comic fan, they appear obviously very different.

So can I safely assume then, that if I create an cartoon drawing in a true caricature style of an overweight man in a Batman outfit, whose naked belly sticks out from under the tunic and over the trousers, clearly not a true representation of The Batman, I won't get away with it because I went ahead and put the official Batman logo across his chest ? Neither parody, pastiche or caricature exceptions would apply and get me out of trouble ?

My brain is starting to wish I hadn't got in to this LOL

[AndyJ]

Hi Batman,

I'm not sure I will be able to satisfactorily explain why some of the decisions went they way thay did. Quite often it's just a case of a large firm with a substantial brand identity being able to afford the best and most persuasive lawyers to argue their case in court.

However, I suspect that with the US layers from Illinois who persue Etsy shop owners, you may have misssed the point. Since you are not averse to a bit of background reading, here's a link to an academic paper on the subject: https://papers.ssrn.com/sol3/papers.cfm ... id=4381824. Let's just say these lawyers are not very nice people and certainly aren't interested in fairness.