Will We Get in Trouble for Sports Celebrity Prints?

Dear Rich: Can an artist sell to the public prints from paintings done of famous sport celebrities for profit in California and other places. He was told an artist's 'first amendment publicity' or something like that trumps the rights of the famous person. This artist doesn't seem to be concerned at all but he's a good friend and not in good health and if something happened and if he was drug into court, he'd likely die from the stress and embarrassment to his career (even if he won). Shall I try and stop him? He says if there is a problem he'll simply just stop immediately. I'm worried about him. We think that what your artist friend was told was that "an artist's first amendment right trumps a sports celebrity's right of publicity," a maxim that oversimplifies a complex issue. The right of publicity allows every person to control the use of their name or persona for commercial purposes -- typically on a product (like our Tiger Woods golf ball). However, celebrities cannot control so-called informational or "communicative" (first amendment) uses -- for example, articles, books, or documentaries.
What about the gray areas? Things get tricky at the intersection of communicative and commercial uses -- such as limited edition art prints. In that situation, a ten-year old Ohio ruling favors your friend. An artist painted Tiger Woods at the Masters Tournament and later sold more than 5000 prints of the image superimposed with other great golfers. (Here are some details on the artwork). A federal court of appeals ruled that the sale did not violate Tiger's right of publicity. A related ruling regarding paintings of the University of Alabama's football team -- though it dealt more with trademarks than the right of publicity -- also was in favor of the artist. Both of these cases took years and a great deal of attorney time and fees to decide. So, although the law may be on the side of your friend, that doesn't mean he can't be dragged into court to defend his rights.
No copyright infringement. Also, we're assuming that the prints being sold are made from your artist friend's original paintings. If the paintings are by another artist, or if they are based on a photographer's original photos, then your friend could be hassled for claims of copyright infringement by the original artist or photographer respectively.

Wants Trademark Rights to Sports Star Nickname

Dear Rich: I read your entry about sports stars and nicknames where you say that the sports star or team has the rights to the nickname. Here are my questions: 
(1) What if the nickname has already been bought and sold nationally and the artwork associated with the nickname is copy-written as well as having the nickname trademarked? (Common Law TM'd/© for some time before it caught on - Registered TM in process) 
 (2) I realize that the player most likely owns their likeness, but wouldn't the person who created a potential $-maker of a nickname for them and got the ball rolling on that side of things, be entitled to something? Thanks for checking out our previous entry, which was unusually popular. For that reason, we're happy to run through your questions in the hopes that it will churn up our metrics. (BTW, there's a difference between a copyrighter and a copy-writer. Check with Don Draper for more details. Also, there are some among us who do not believe trademark (or copyright) should be used as a verb.)
Question 1: Sorry, but we don't know what you mean by "bought and sold nationally." If the artwork is protected by copyright , then the owner of copyright can stop others from using it. But that doesn't mean the owner can use the artwork as a trademark. Imagine that you created artwork for the new Starbucks logo. You owned the copyright and wanted to use that on a line of coffee mugs. Starbucks would have little trouble stopping you. As for common-law copyright, that's not relevant to your discussion for reasons we don't have time to explain. "Common-law trademarks" (that is, unregistered trademarks) are subject to most of the same rules as registered marks and a sports star or team could most likely stop competing uses.
Question 2: There's no question that fans of sports stars love those nicknames, but ultimately anyone who commercially promotes a sports star's nickname is trading off the sports star's success. The nickname-exploiters didn't "get the ball rolling," they hopped on the ball for a ride. (Would the nickname have any value if the star hadn't become famous?) Trademarks reward commerce, not creativity and on that basis, the sports star (or the team or league, as the case may be) will most likely prevail in disputes.

Can I Trademark a Sports Star Nickname?

Dear Rich: What about the case where a fan comes up with a nickname for a sports star that is potentially a hot ticket? Can they trademark the nickname to protect potential rights to selling merchandise before the name gets traction? Probably not. As we predicted in a previous entry, applicants for the "Linsanity" trademark were dispatched by Jeremy Lin's lawyers (and they lost their $300+ trademark application fees, as well). The reason: use of the nickname on merchandise deceives consumers (who associate the nickname with the sports star, not the fan). This New York Times article goes into more detail. Even "unique" facial hair can form the basis for a basketball player's protectable trademark. Keep in mind that trademark law, unlike patent and copyright law, doesn't reward creative efforts, it rewards those who create a consumer association with a mark. So thinking up the trademark, or racing to the USPTO to be first to file, won't guarantee you trademark rights. BTW, in addition to trademark rights, you're also probably violating the right of publicity.

Wants to Use Sports Nicknames

Dear Rich: I would like to use nicknames of sports stars on merchandise. Can you tell me what is allowed and what isn't. For example, let's use New York Knicks (team colors are blue and orange) player, Jeremy Lin, who wears number 17. He has had many nicknames given by the media. Can I: (1) print on a blue t-shirt, with orange writing saying "Linsanity" and the number 17, (2) print on a blue t-shirt, with orange text just saying "17," or (3) print on a blue t-shirt with orange text saying "New York" and the number 17? The general rule we've observed in sports merchandise infringement is that if you're on the league's radar in a big way  -- whether copying numbers, letters, colors or some combination -- the league's lawyers will come after you. It usually doesn't matter whether the league will win in court (though most of the time they will) because most small merchandisers can't afford to take them on. (Yes, we know that can be unfair to the fans.) That said, you can probably get by with #2, a blue shirt with an orange number 17, and with #3 (especially if the lettering for New York is not in the Knicks typestyle). As noted, avoiding getting hassled may have a lot to do with where you sell your stuff. As you can imagine, you're always more likely to get hassled if you set up a booth near a licensed merchandiser who will certainly report your sales.
Nicknames. The legal right to exploit a player's nickname may belong to that player, particularly as with Linsanity, where the nickname incorporates the player's surname. In that case, the player may be able to assert right of publicity claims or trademark claims. As the search results for Linsanity show (above), there are presently nine people vying for the Linsanity registration for products ranging from computer software to perfume (Bouquet de Gym Socks?). We think, except for this applicant, most applicants will likely have wasted their $345 application fees.

Can We Republish Sports Statistics?

Dear Rich: We are frequently publishing sports books about notable persons or events in sports history. As a matter of fact, sports has - almost always - to do with statistics and results. I was very astonished to read on some websites that it is not quite clear if sports statistics are really public domain and that especially the pros like MLB, NFL, NBA and NHL are very keen on protecting what they think of could be THEIR stats and records. I would be thinking that stats are facts and can not be copyrighted at all? Yes, individual sports statistics are facts and as the Supreme Court has indicated, "No one may claim originality as to facts." (The Copyright Office seconds that emotion.) In a 1997 case, the NBA went after a paging service that borrowed a live feed from a basketball game. A court of appeals ruled that sports stats couldn't be protected -- for example, no one can claim rights to the name of the teams playing, changes in score, team in possession of the ball, whether the team was in free-throw bonus, the quarter of the game, and the remaining time in the quarter. Despite that ruling, other leagues such as the NFL, PGA, and MLB have unsuccessfully gone after fantasy sports leagues or other users who have ported their stats.
You're unlikely to run into problems because ...  Keep in mind that many of these legal battles deal with more than stats -- for example, some of these cases also dealt with a company's right to use a sports star's name or likeness. And, also, these sports franchises tend to flex their muscles in cases where they have big targets such as Motorola or Yahoo! Aside from the exceptions cited below, we think you can freely use sports statistics in your books.
When could it be an issue? You could run into problems if you seek to lift a complete database of information -- for example, you copy a 10,000 entry database entitled "A statistical analysis of home runs scored when a right handed pitcher faces a left-handed batter." That's because a collection of facts can sometimes be protected under copyright as a compilation (if selected and organized with some creativity). In addition, databases are also sometimes protected under license agreements. So, for example, if you're at a league website and you click on a "I Agree" button under which you promise not to copy data, you may be bound by that agreement despite the fact that copyright doesn't protect the underlying data.

Can I Sell Sports App That Uses RSS Feed?

Dear Rich: I've already made an app that feeds RSS feeds from SkySports and goal.com. The app informs people on the go about their football team. I'm about to change the app slightly and putting more work into it. I'm thinking about selling it for 1 pound. Would this be copyright infringement because I'm making a profit (or am I just feeding people the infomation from the direct source, that is, skysportsnews.com and goal.com)? Start by considering the two extremes of RSS feeds apps. On one end you have RSS reader apps like Xnews. These apps don't infringe because they are simply providing access to a variety of feeds. On the other end you may have a news app that pulls feeds from a few specific news sites and reproduces the material within the app. This is more likely to be copyright infringement because it is reproducing specific RSS feed content for readers, as well as trademark infringement because it is confusing consumers as to the source of the material. (BTW, we wrote about this issue about six months ago.) Your app seems to be somewhere in between these two extremes (and the fact that you are charging money doesn't affect the determination). The more you move away from the reader model where the user chooses the RSS feed and gets unadulterated content, and the more you hype the name of the company supplying the feed, the more likely you will run into problems. In your case, reproducing content from two specific feeds (whose trademarks are featured) could trigger a cease and desist letter.