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Copyright infringement cases take a personal turn

Ohio company uses U-M football fan’s likeness for T-shirts.

November 27, 2015
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Chris Baldwin, the University of Michigan sophomore whose utter shock and bewilderment was broadcast across the country repeatedly following Michigan State University’s defeat of U-M in the last 10 seconds of a football game last month, is now playing a starring role on a T-shirt produced by an Ohio company.

Though not an official Ohio State Buckeyes T-shirt, one doesn’t have to go too far to make that connection.

It’s a red shirt with Baldwin’s likeness on it — wearing a U-M shirt, hands clasping his head in disbelief in the position where the first “O” in Ohio would go. The shirt has been named “The Disappointment Up North."

Baldwin doesn’t seem to be bothered by the fact that Cincy Shirts, a Cincinnati T-shirt company, is profiting from his sudden fame.

Sheila Eddy, an attorney with Smith Haughey Rice & Roegge, said if he did care, however, he could likely sue the T-shirt company for using his likeness without his permission.

“This company is trying to exploit this guy’s face on T-shirts and make a profit,” Eddy said.

Eddy said the question for a court to consider is whether Baldwin has a right in protecting his image from being used in a commercialized context.

“The answer is maybe, in Michigan anyway,” Eddy said.

That’s because in Michigan there is a body of law related to publicity that indicates an individual who has some pecuniary right in his or her name or likeness, whose name or likeness has been used for the commercial benefit of someone else without his or her permission, would have cause of action for right to publicity.

Eddy said since Baldwin is not a celebrity, the question is whether he has a right under the law in protecting his image from being used in a commercialized context.

“In Michigan, the general rule seems to be you don’t have to be famous to have a cause of action against someone for exploiting your name or likeness without your permission for commercial gain,” Eddy said.

She noted that cases have gone both ways, however, so it’s not completely clear cut.

“Some cases have indicated that having some name recognition or some level of celebrity is important to making that claim, but other cases have indicated that you don’t necessarily have to be a celebrity.

“Just the fact that somebody thinks they can make money on your likeness is enough to establish that you probably have a pecuniary interest in your name or likeness, because if someone else can make money on it then, in theory, you could, too,” she said.

“In this case, he is just a college kid who did not have a pecuniary right in his name or likeness, but now his likeness is being used for a commercial purpose. Somebody is profiting off of that, so I think there would be some right to publicity concerns there for him that should be looked into.”

Eddy said potentially there is a second legal issue in the T-shirt situation — a question of copyright infringement.

She explained a recent situation involving SB Nation and Twitter.

“Just a couple of weeks ago, the NFL sent Twitter a bunch of Digital Millennium Copyright Act take-down notices, saying SB Nation is circulating these GIFs that are the sole copyright of the NFL,” Eddy said. “Twitter had to take it down pursuant to the DMCA laws to be shielded from liability.

“There was a lot of backlash there because SB Nation is kind of a media outlet and, typically, media outlets are allowed to share those kinds of things without any kind of take-down notice because it’s considered newsworthy and that is a fair use under the copyright act.”

Eddy said this situation draws questions about whether the T-shirt company or anyone else using Baldwin’s image is infringing on the copyright of the broadcaster or owner of the copyright image for that particular clip of the game.

“They may have a potential claim for copyright infringement against people who are sharing it or making a profit on it or duplicating it anywhere, and they may be able to go after this T-shirt company,” she said.

Eddy said businesses need to make sure they are not violating a copyright and that they have the appropriate permissions before using someone’s name or likeness to turn a profit.

“I would never recommend that someone use another living person's name or likeness without his or her permission,” she said.

Individuals also need to be aware of their rights, especially before posting photos or videos of themselves online.

Eddy said with social media platforms so prevalent, she hears from a lot of clients who are concerned their photos are being used or shared in ways they don’t want them to be and without their permission.

“There are many steps that have to be taken to analyze each individual case,” she said.

First and foremost, she said, people should pay attention to the terms of use they are agreeing to when they begin using a social media site.

For instance, with Facebook, she said upon her last review of its terms of use, users agree to allow Facebook to use any voluntarily provided content, including photos and data, to customize a user’s experience.

“Facebook says, ‘We don’t own your stuff, but we have an unlimited, worldwide royalty-free license to use any content you voluntarily provide to the website,’” she said.

“They are not saying they own your photo or that they can sell it or anything like that, but they are saying, in order to customize your experience, you are providing access to use in any way they want whatever you voluntarily give them.”

In the case of an individual or a business taking a photo or video off someone’s Facebook page and sharing it or using it, Eddy said the best recourse is usually making a copyright claim.

“If it’s a selfie and you’ve taken the photo of yourself … you own the copyright in that photograph,” she said.

“When a client says to me, ‘A photo I took of myself in a position that was not favorable that I gave to my boyfriend, thinking it would be kept private, is coming up on the Internet. What do I do?’

“Believe it or not, the fastest way to get it down is through a copyright DMCA take-down notice,” she said.

But what if you didn’t take the photo?

“It gets trickier when the copyright belongs to someone else,” Eddy said. “In theory, the person who took the photo is the copyright holder.”

With so many platforms to share photos now and so many people curating or branding themselves on these platforms, there might be more copyright infringement cases to navigate in the future.

“If you were to go back 30 years ago and look at copyright infringement cases or disputes that maybe never went to court, but someone sent a letter and said, ‘I don’t like that you did this,’ the only people who did that were companies who owned copyrights or photographers or budding photographers,” she said.

“Your average Joe didn’t have access. Now, everyone has access to a platform to showcase whatever they want.”

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