united-states copyright photography politics
Why is Star Wars a copyright issue but a MLB team is not?
<p>Over the weekend, I was asked to be part of a photo shoot for a political candidate. I was wearing a t-shirt that featured a Star Wars character and the photographer stated that he wanted to position me in a fashion so it wasn't visible to avoid a, 'copyright issue'. (For those who are curious, the request was made last minute and I wasn't advised on clothing restrictions)</p>
<p>After a certain point, it was determined that the ideal angle still was showing the Star Wars character, so they gave me a t-shirt featuring logos and imagery associated with a Major League Baseball (MLB) team.</p>
<p>I'm trying to figure out why the MLB shirt wouldn't create a copyright issue for the photographer, while the Star Wars character would. Is it relating to the litigious nature of Disney (I really doubt this MLB team would sue) or is there something about MLB logos that are inherently fair use?</p>
<hr />
<p>Regarding this potential <a href="https://law.stackexchange.com/a/56173/11906">duplicate</a> which questions whether a trademark can be used by a political campaign without permission and the most upvoted answer is of course, &quot;it depends,&quot; but for the equivalent scenario in my question it seems like it would not be allowed because of the logo's prominence in the photo. Thus it begs the question why is this copyrightable material acceptable and this one is not?</p>
<p>To clarify the issue, the MLB logo in particular is for the Philadelphia Phillies. As a team, they've had a variety of logos over the years and based on the answers provided thus far, it seems some may be subject to copyright and others would be subject to trademark depending upon the complexity of the art. In this specific case, it's this version of their logo:</p>
<p><a href="https://i.stack.imgur.com/4zhH5.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/4zhH5.png" alt="enter image description here" /></a></p>
<p>As this is more than just stylized lettering, it seems this would presumably be subject to copyright.</p>

<p>From the mention of a MLB shirt, I am going to assume the OP is located in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>.</p>
<h2>Logos are (in general) copyrightable</h2>
<p>Anything with a modicum of creative input is by default copyrighted. This includes both film shots from movies and logos of sports organizations.</p>
<p>&quot;Modicum of creative input&quot; is known as the <a href="https://en.wikipedia.org/wiki/Threshold_of_originality" rel="nofollow noreferrer">threshold of originality</a>. That legal doctrine is in force in the US, but not in other jurisdictions - for instance, the UK uses &quot;<a href="https://en.wikipedia.org/wiki/Sweat_of_the_brow" rel="nofollow noreferrer">sweat of the brow</a>&quot; where creativity is not needed to obtain copyright protection.</p>
<p>A still shot from a film set almost surely passes the threshold of originality. However, some logos do not.</p>
<p>For instance, the Pittsburgh Pirates logo is a two-dimensional letter P - somewhat stylized, but not that much. It is arguably below the threshold of copyright protection. On the other hand, the Red Socks logos (which is, well, two red socks) is almost surely copyrighted.</p>
<p>Let us assume that the logo or imagery present on the OP's photo shirt was indeed copyrighted. Does that make the photo a copyright violation?</p>
<h2>Incidental use</h2>
<p>It <em>might</em> be the case that having the artwork on the shirt as an incidental part of the photograph makes it OK. In the US, such incidental use could be covered by fair use, but as always, it’s a delicate balancing act. A professional photograph taken for political advertisement is going to be held to a higher standard than a blurry photo from your aunt’s Facebook gallery.</p>
<p>Dmitry Grigoryev says in comments that walking around with a Star Wars shirt could be construed as distributing (via public display) a copyrighted work. However, &quot;putting it on and walking around&quot; is an essential function of a shirt. Absent terms to the contrary, whoever sells a shirt with a copyrighted design grants an implied license to the shirt-wearer to move about with that shirt. [EDIT: see Mayken’s comment, that’s a statutory exception to copyright.] The scope of such implied licenses can be unclear, though, and it could arguably not extend to promotional photographs for political advertisements.</p>
<p>Note <a href="https://www.pinsentmasons.com/out-law/news/urheberrechtsverletzung-durch-aufnahmen-von-hotelzimmern-mit-fototapete" rel="nofollow noreferrer">a recent case in Germany</a> <a href="https://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2022/14_O_350_21_Urteil_20220818.html" rel="nofollow noreferrer">(link to judgement, in German)</a> where it was held that a hotel posting online pictures of its rooms, including a wallpaper design, violated the copyright of the designer. I am not familiar enough with German copyright law to determine if an appeal of that lower-court decision would have any chance of success, but I think that ruling is reasonable within the general principles of EU copyright law. (Whether it is <em>morally</em> acceptable is of course another thing entirely.)</p>
<h2>Non-legal explanations</h2>
<p>It is also possible that the photographer or another PR staff member would rather have the politician associated with baseball than with Star Wars for image reasons, and copyright is only a pretext for that. Or that they (mistakenly) thought that the baseball shirt design was not copyrighted.</p>

<h2>Fair Use is in the eye of the beholder</h2>
<p>Fair Use is the idea that you can use copyrighted materials to the extent that there's no direct copying. <a href="https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html" rel="noreferrer">The Copyright Act of 1976 is where Fair Use is defined</a></p>
<blockquote>
<p>A court weighs four factors when it considers a fair use defense.
These four factors are spelled out in Section 107 of the Copyright Act
of 1976 (17 U.S.C. § 107) and are:</p>
<ol>
<li>the purpose and character of the use, including whether it's of a commercial nature or for nonprofit educational purposes</li>
<li>the nature of the copyrighted work</li>
<li>the amount of the copyrighted work used in relation to the copyrighted work as a whole, and</li>
<li>the effect of the use upon the potential market for or value of the copyrighted work.</li>
</ol>
<p>As you can see, these are not yes/no questions, so it's up to the
courts to determine whether each factor supports or goes against a
finding of fair use. Even then, there's no equation or formula for
determining whether a use is fair use. The courts consider each factor
and then decide whether, on balance, they point in favor of or against
fair use.</p>
</blockquote>
<p>In other words, there's a pretty wide latitude to sue anyone who infringes upon your copyright. Why aren't there a ton of lawsuits then?</p>
<h2>Copyright litigation is prohibitively expensive</h2>
<p>Nobody wants to be sued for copyright infringement. It can run into large sums of just attorney fees just to get it to court, let alone get a judgment. JK Rowling and Warner Brothers (US copyright licensee) <a href="https://www.hollywoodreporter.com/business/business-news/jk-rowling-wins-copyright-suit-118742/" rel="noreferrer">won $6750 and an injunction against a Pottermore book</a>, but both sides certainly spent far more than that in litigating the issue. If there's a chance you might be seen as infringing upon someone's copyright, it's cheaper to avoid the issue.</p>
<h2>If you're making money, litigation odds go up</h2>
<p>&quot;Weird Al&quot; Yankovic, for instance, parodies popular songs. He could make a Fair Use case, but, as he's making money in the process, <a href="https://www.weirdal.com/archives/faq/" rel="noreferrer">it's safer to just license the music instead</a></p>
<blockquote>
<p>Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.</p>
</blockquote>
<p>This makes a lot of sense. He rarely does anything controversial with his songs and it's extra revenue for the song writers. More importantly, you won't sue someone paying you under license.</p>
<h2>Does the copyright holder like the use?</h2>
<p>What's the difference between MLB and Disney? My bet would be something to do with this</p>
<blockquote>
<p>I was asked to be part of a photo shoot for a political candidate.</p>
</blockquote>
<p>I'll get political for just a second. You don't mention the politician, but I can think of a few that the The Walt Disney Company might not be keen on seeing with their licensed material. Chief among them would be <a href="https://www.vox.com/politics/2023/4/20/23691341/ron-desantis-disney-world-board-reedy-creek-florida" rel="noreferrer">Florida Governor Ron Desantis</a></p>
<blockquote>
<p>DeSantis, out for revenge after suffering a major loss in his efforts to punish Disney for being “woke,” announced a new bill to rein in Disney’s theme parks Tuesday. In a return to the issue that first earned it the governor’s ire, the “Happiest Place on Earth” unveiled its first-ever event to celebrate Pride Month on April 14, complete with themed entertainment and specialty menu items.</p>
</blockquote>
<p>The open secret here is that you can sue anyone for copyright infringement, even if there's a strong case for Fair Use. <a href="https://arstechnica.com/tech-policy/2017/08/youtuber-court-battle-results-in-fair-use-win-for-online-reaction-videos/" rel="noreferrer">Not liking the person you're suing can play a role in suing for copyright infringement</a></p>
<blockquote>
<p>After more than a year of battling in court, Ethan and Hila Klein, the YouTubers behind the H3H3 Productions channel, won a lawsuit filed against them by another YouTuber. Matt &quot;Hoss&quot; Hosseinzadeh—MattHossZone on YouTube—sued the pair after they uploaded a video in which the Kleins react to one of Hosseinzadeh's videos and criticize him in the process. Hosseinzadeh then sued the Kleins for a number of things, most notably copyright infringement for using clips of his video in their own.</p>
</blockquote>
<p>A major league baseball team is far less likely to start a feud with a politician's photographer than a major corporation openly engaged in a political feud.</p>

<h1>Logos aren't copyrightable. Artwork is.</h1>
<p>Not a lawyer, but my understanding is that logos aren't copyrightable, but artistic designs are.</p>
<p>Logos are protected by trademark law, not copyright law. Therefore, a shirt with a sports team team logo wouldn't cause any copyright issues (but it may create trademark issues if it looks like the team is endorsing something and they're not).</p>
<p>Artistic designs, however, are protected by copyright, and that would include designs depicting characters from movies. However, a photograph of a person wearing a shirt featuring an artistic design is likely to be transformative enough to count as fair use. Fair use has <a href="https://fairuse.stanford.edu/overview/fair-use/four-factors/" rel="nofollow noreferrer">four factors</a> that US courts rely upon when making the determination of fair use, and I doubt anyone would be able to make an argument that a photo of someone wearing a shirt will usurp the market for people buying actual shirts.</p>

<p>Before COVID, I taught acting &amp; modeling. We had a few sessions that were photo shoots. We instructors, and the photographers would also make that same comment.</p>
<p>The other answers discuss the legal issues. I will answer from another perspective.</p>
<p>Saying &quot;...to avoid copyright issues...&quot; is a clear, quick and convenient way of saying it. It may not be completely for legal reasons.<br />
<br>
Some people are angry. Some people are not very smart. Some are just looking for a fight. (Obv. no one on this site falls into any of those categories).<br />
<br>
Consider these scenarios:</p>
<p>&quot;OMG!  is trying to align himself with the Star Wars crowd. I'm in the Star Wars crowd and that dude doesn't represent me!&quot;</p>
<p>&quot;(One of) The copyright owner(s) is worried that people will be associating them as supporting the candidate. Which, of course, would not be true.&quot;</p>
<p>&quot;Why in the world would &lt;person/organization associated with the production of Star Wars&gt; want to support ? That's disgusting. I will never watch another thing &lt;person/organization&gt; does.&quot;</p>
<p>I'm sure there are others. You've probably heard similar arguments (Ex. Politician X pays to use song Y in their campaign. Band T, who recorded the song, writes a letter to Politician X telling them not to use their song because they don't endorse him).</p>
<p>TL;DR:<br />
Here's what I told my students:<br />
&quot;If they ain't paying you to represent them, don't wear their stuff.&quot;<br />
That made a lot more sense to them. The end result is the same, just the rationale is different.</p>
<p>$0.02</p>
