Got hit with a C&D for a shirt design, then someone stole it, what now?
January 5, 2017 3:13 PM Subscribe
Can someone use my work without my permission after they issued a cease and desist to keep me from using it myself?
Howdy howdy,
I sell t-shirts with famous people illustrated by their hair, and while I usually stick to long dead people (or living people who's explicit permission I have received), but every one in a while I throw something up a bit more questionable in terms of likeness rights (eeep). In this case I made a Ric Flair shirt that got a little bit of attention (it's no longer on my site, but here's a link to a blog post about it):
http://brobible.com/gear/article/ric-flair-shirt-greatest-ever/
Welp, a few weeks later I received a cease and desist from Ric Flair's people and I immediately took it down, and then I promptly forgot all about it. However just today I got a tweet from someone pointing out that apparently my design is being sold by someone else:
https://ricflairshop.com/
Basically it looks like they used the exact design except they simplified the glasses a bit. I don't know if that site is officially connected to Ric Flair, but given how quickly mine was taken down, I suspect so.
So what are my options here? Obviously I didn't have the rights to make a Ric Flair shirt in the first place, but these folks don't have the right to use my design without my permission, right?
Should I start by figuring out if these guys are officially licensed? Assuming it is, should I say something in the hopes of getting compensation for my work (or at least get it taken down in a turn-about-is-fair-play kind of way) Or should I just ignore it, and just count myself lucky they dropped the matter at a C&D in the first place and didn't come after me for damages (a decision they might reconsider if I start kicking up dirt)?
Howdy howdy,
I sell t-shirts with famous people illustrated by their hair, and while I usually stick to long dead people (or living people who's explicit permission I have received), but every one in a while I throw something up a bit more questionable in terms of likeness rights (eeep). In this case I made a Ric Flair shirt that got a little bit of attention (it's no longer on my site, but here's a link to a blog post about it):
http://brobible.com/gear/article/ric-flair-shirt-greatest-ever/
Welp, a few weeks later I received a cease and desist from Ric Flair's people and I immediately took it down, and then I promptly forgot all about it. However just today I got a tweet from someone pointing out that apparently my design is being sold by someone else:
https://ricflairshop.com/
Basically it looks like they used the exact design except they simplified the glasses a bit. I don't know if that site is officially connected to Ric Flair, but given how quickly mine was taken down, I suspect so.
So what are my options here? Obviously I didn't have the rights to make a Ric Flair shirt in the first place, but these folks don't have the right to use my design without my permission, right?
Should I start by figuring out if these guys are officially licensed? Assuming it is, should I say something in the hopes of getting compensation for my work (or at least get it taken down in a turn-about-is-fair-play kind of way) Or should I just ignore it, and just count myself lucky they dropped the matter at a C&D in the first place and didn't come after me for damages (a decision they might reconsider if I start kicking up dirt)?
Hmm. Not sure, but if you are concerned about possibly ending up in court some day over this, just know that this question would come up in a Google search about the person you reference. AskMe is not in any way private.
posted by jbenben at 3:45 PM on January 5, 2017 [2 favorites]
posted by jbenben at 3:45 PM on January 5, 2017 [2 favorites]
Should I start by figuring out if these guys are officially licensed?
Well official Ric Flair is advertising it on FB and twitter, so probably safe to say its official.
Obviously I didn't have the rights to make a Ric Flair shirt in the first place, but these folks don't have the right to use my design without my permission, right?
You had the right to make a Ric Flair illustration. You had the right to make a t-shirt with the illustration. But selling merchandise with that image (i.e. exporting his likeness) was probably the problem.
However, it's still your creation and you retain copyright. Just because you can't sell that image doesn't give them some automatic right to.
IANAL. But you might want to get one.
posted by Kabanos at 3:50 PM on January 5, 2017 [12 favorites]
Well official Ric Flair is advertising it on FB and twitter, so probably safe to say its official.
Obviously I didn't have the rights to make a Ric Flair shirt in the first place, but these folks don't have the right to use my design without my permission, right?
You had the right to make a Ric Flair illustration. You had the right to make a t-shirt with the illustration. But selling merchandise with that image (i.e. exporting his likeness) was probably the problem.
However, it's still your creation and you retain copyright. Just because you can't sell that image doesn't give them some automatic right to.
IANAL. But you might want to get one.
posted by Kabanos at 3:50 PM on January 5, 2017 [12 favorites]
What Kabanos said. The C&D letter was a trademark or copyright claim, but they are violating your copyright, because you did some original creative work to design the t-shirt. While the original creator reserves the right to profit from their own copyright, they cannot then turn around and steal yours, even if it's a riff on theirs.
In the same sense, I cannot sell my Narnia fanfic, but neither can the C. S. Lewis estate sell my fanfic for profit without my permission.
Get an intellectual property attorney familiar with copyright issues.
Or accept that this shit is going to happen.
posted by suelac at 4:01 PM on January 5, 2017 [7 favorites]
In the same sense, I cannot sell my Narnia fanfic, but neither can the C. S. Lewis estate sell my fanfic for profit without my permission.
Get an intellectual property attorney familiar with copyright issues.
Or accept that this shit is going to happen.
posted by suelac at 4:01 PM on January 5, 2017 [7 favorites]
Get your legal consult quickly -- there are some deadlines that you might be able to use to your advantage if you don't miss them. (If you register your copyright quickly enough, you may be in a position to claim statutory damages from the other side. That ability, plus the availability of attorney fees if you prevail, may make your case interesting to a lawyer who would otherwise have to charge you more than it's worth to you to engage in this fight.)
IANYL, TINLA.
posted by spacewrench at 4:12 PM on January 5, 2017 [4 favorites]
IANYL, TINLA.
posted by spacewrench at 4:12 PM on January 5, 2017 [4 favorites]
Yeah, that's not cool. They're kind of making a circular argument with their behavior. They tell you to knock it off because you don't have rights to the "likeness" and then they sell your work seemingly claiming it's not protectable? I'd definitely get a lawyer's advice and suspect this is a winnable case. Frankly, it may be winable on two fronts. Is a silhouette of hair and glasses really enough detail to claim it's a market-erodable likeness? Only the judge/jury knows for sure but if I sat on that jury, I'd totally call bullshit on this one. Gads, I hate how much power an IP C&D can wield without an actual ruling.
posted by Stanczyk at 4:26 PM on January 5, 2017 [1 favorite]
posted by Stanczyk at 4:26 PM on January 5, 2017 [1 favorite]
I'm an IP lawyer. Get your own if you want to pursue this, this is a complicated question and you need an expert.
posted by benbenson at 7:21 PM on January 5, 2017 [8 favorites]
posted by benbenson at 7:21 PM on January 5, 2017 [8 favorites]
Or should I just ignore it, and just count myself lucky they dropped the matter at a C&D in the first place and didn't come after me for damages (a decision they might reconsider if I start kicking up dirt)?
I mean, I don't know what the market is for Nature Boy t-shirts, but if you decide to start a fuss, you are at least going to have to pay for a good IP lawyer, and I can't imagine there is enough money in it for you, even in a best case scenario, to make that worthwhile.
posted by Rock Steady at 5:46 AM on January 6, 2017
I mean, I don't know what the market is for Nature Boy t-shirts, but if you decide to start a fuss, you are at least going to have to pay for a good IP lawyer, and I can't imagine there is enough money in it for you, even in a best case scenario, to make that worthwhile.
posted by Rock Steady at 5:46 AM on January 6, 2017
Response by poster: I fired off an e-mail to a lawyer that was recommended to me via PM and they replied back saying basically I wouldn't have a legal leg to stand on in this case.
*shrug* so I guess that's that!
posted by Jezztek at 12:44 PM on January 6, 2017 [1 favorite]
*shrug* so I guess that's that!
posted by Jezztek at 12:44 PM on January 6, 2017 [1 favorite]
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That said, you don't magically give up copyright just because your design uses some likeness or trademark without a license. If these guys are official, then you may have some rights to compensation, and you'd need a lawyer to advise you on how best to proceed. If they're not official, they're in the same boat you were. Presumably you can contact whoever sent you the original C&D to ask them about official-ness.
posted by Aleyn at 3:44 PM on January 5, 2017 [4 favorites]