Superbowl Logo - Trademark/Copyright

[michaeldaggett]

<p>Craig,<br>

Do you think Gentile originally stepped on shaky ground when he manipulated his photo - turned it into a piece of merchandise by adding a border, and a caption? Do you think the dissenting opinion would have sided with the majority had he simple sold the photograph as seen, without the inclusions to make it more resemble a piece of merchandise?<br>

Would photographic paper, versus poster paper made a difference?</p>

[craig_gillette]

<p>Not sure what might have turned either side around. My impression is that the dissenting judge wasn't close at all to accepting the Gentile side's arguments. It's been a long time since I read the decision though. I kind of wonder how close one of the others might have been to going with the dissent. </p>

<p>I don't think the type of paper would make any difference, but that doesn't mean it might not be argued that the method of presentation/publication was in an art fashion as opposed to a mass marketed product. That might have different weight in different types of conflicts, as in copyright versus trademark versus "publicity," etc. There are a lot of different factors which would go into this kind of thing.</p>

<p>I do think there are two big factors that drive infringement actions (in a general impression). One is "That's my art!" Pride is hurt and they want to recover what was "stolen." The other is "That's my money!" and the owner will aggressively go after anything that they think infringes on their business interest/profits. I don't think the NFL looks at is an artistic issue at all. I think that's where the shaky ground would come from. Either way, the lawyers will argue the law in the ways most likely to support their own side of the particular sets of circumstances. </p>

<p>There are other entities which don't care about being imitated or having their names, logos, images, etc., used. If they don't care, they don't initiate an infringement action. I'd suggest when you have the potential of going up against something like the NFL, real, competent legal advice is in order, not just forum musings.</p>

<p> </p>

[paulie_smith1]

<p>Craig, you have it right. NBA is one of the worst to deal with as they want everything and will go after anyone. They have even gone after photo labs that hang a photo of one of their players in its lobby to show the printing they do for the Team. Nasty people to deal with.<br>

The NFL isn't quite that bad but... they will and do go after those uses they don't see benefitting the league in some fashion.<br>

Fine Art is its own catagory and from what we have seen in the courts one might have a much better chance of winning against any of these entities if it came to that. Also a better chance of ACLU or 'friends' of the photo world providing legal assistance or even taking the load for you if you end up in court.<br>

Our definition and someone else's definition of "commercial" use is usually much different. Much of the time the guy with deep pockets and entire cities of lawyers on retainer wins. At the least they bleed a person for years before they lose and that fact alone keeps many from ever trying.<br>

My favorite tho is the Tiger Woods dispute. Couldn't happen to a nicer guy.</p>

[daverhaas]

<p>I heard something on the radio this morning that may or may not be of note to this discussion:</p>

<p>A commercial (actually several of them) touting a local eatery's offerings for Sunday Feb 5 - or as they referred to it - The Big GAME day.... No mention of the words Super or Bowl and certainly no mention of the 2 words together. Every commercial featuring Sunday Feb 5 specials is like that...</p>

<p>Why? Because the products / vendors are not "Official" NFL sponsors and they don't want to pay the big bucks to be licensed to use the term "Super Bowl"</p>

<p>I'm guessing that they (NFL) would apply the same logic to your photo. Not licensed, don't sell it.</p>

<p>Dave</p>