Selling original oil paintings of NBA players, Nike shoes, etc. Is this legal?

[macaddict23]

Hello.

My brother does a lot of oil paintings mostly of Michael Jordan and his line of shoes. He's thinking about selling prints of these paintings. Is this illegal? Thanks.

 

[Macky-Mac]

there are going to be various issues with trademark and copyright violations

 

[Daveman Deluxe]

Your brother really should talk to a lawyer.

 

[Sdashiki]

No. You can sell paintings of anything you like so long as you dont misrepresent the work in anyway.

There is no law that says you cant be creative however you want to be with you paints. Paint a Picasso, sell it, as long as you dont say Picasso painted it, there is nothing wrong.

No one ever told Warhol he couldnt paint Campbell Soup cans and sell them...

Painting is a huge misconception on a lot of levels. Just think of it this way: if you want something painted, and are willing to pay for it, who has the right to stop you?

Michael Jordan didnt sit down and have his likeness painted. And as long as there is no false pretense on a sale, how can it be at all "illegal"?

 

[macaddict23]

In the case of his Jordan paintings, he usually takes an existing photo of Jordan, whether it's from a magazine, online, or a book, and he'll change his jersey color as well the background of the original photo.

 

[Sdashiki]

Sell it. If someone comes a'callin for your head and your profits...get a lawyer and reap the benefits of HUGE exposure for the work.

But seriously, sell creative work and never question it. Art is Art. Or in this case Art is $.

 

[Macky-Mac]

....Michael Jordan didnt sit down and have his likeness painted. And as long as there is no false pretense on a sale, how can it be at all "illegal"?

Because Michael Jordan has the legal right to control the use of his image, trademarks and copyrights for profit. If these prints of paintings are the sort that could be easily confused with an authorized Michael Jordan product, then there's a potential legal problem in selling them.

The artist can argue that the original paintings are an artistic statement, but when he starts selling prints he's moving into the area of commercial use that's going to potentially cause him problems

 

[decksnap]

In the case of his Jordan paintings, he usually takes an existing photo of Jordan, whether it's from a magazine, online, or a book, and he'll change his jersey color as well the background of the original photo.

Unless HE took the picture, I'm guessing this is where it gets illegal.

 

[ddollar]

Because Michael Jordan has the legal right to control the use of his image, trademarks and copyrights for profit. If these prints of paintings are the sort that could be easily confused with an authorized Michael Jordan product, then there's a potential legal problem in selling them.

The artist can argue that the original paintings are an artistic statement, but when he starts selling prints he's moving into the area of commercial use that's going to potentially cause him problems

michael jordan is a public figure so he cant do anything about it

 

[Abstract]

Definitely questionable. I'd get a lawyer.

 

[Koodauw]

Does he have a website? I would be interested in some of the paintings of the shoes.

 

[decksnap]

michael jordan is a public figure so he cant do anything about it

I don't think that point matters if he's copying his painting from someone else's photograph. That's not legal.

 

[CorvusCamenarum]

There's a similar case currently before US District Court. Google University of Alabama v. Daniel Moore for more info. The long and short of it is that Moore creates paintings based on Alabama football, makes a lot of money doing it, and the university is suing him for trademark infringement as they're not licensed. Moore is countersuing on First Amendment grounds.

So yeah, I'd get a lawyer and make sure everything is on the level.

 

[GfPQqmcRKUvP]

I'd love to see a portfolio of his work if he has a website. Does he?


I'm a huge MF/basketball fan.

 

[ipodtoucher]

Definitely check with a lawyer, even though Michael Jordan is a public figure his logo is very copywrited and trademarked...but i think you should post some pictures of his work on here and let us enjoy them haha

 

[LethalWolfe]

Yeah, definitely get a lawyer that specializes in copyright/IP 'cause this is definitely something that could land your brother in court. Even if your brother isn't in the wrong he may still end up w/a truck load of legal fees defending himself in court.

Someone who is a public figure has a lower expectation of privacy, in the legal sense, but that doesn't mean they lose their ability to control the use of their image. In fact public figures, especially people like Jordan who have basically turned themselves into a brand, are more likely to defend their likeness because they know how valuable it is. Haynes, Nike, Gatorade, Wheaties, etc., all paid Jordan a lot of money for the right to sell products using his image.


Lethal

 

[Macky-Mac]

michael jordan is a public figure so he cant do anything about it

of course he can. You can't just use somebody's image for commercial purposes without their permission. For example, Wheaties can't plaster pictures of him on their cereal boxes without paying him an endorsement fee.

 

[Abstract]

But in that case, his image is used to represent a product or brand he never agreed to represent or associate with. With a painting, I think it's a bit different. I would have thought a painting of a photo, if explicitly stated that MJ didn't privately pose for the painting, would be legally OK. I'd expect the same rights if I took a photo of him, even if various brand names and logos were present in the photograph (his brand, another brand, whatever). If I tried to advertise a product using this photo, then that would be illegal. It's understandable, as he never agreed to represent my product. However, if I took a photo of a person on the street, or at a basketball game, museum, walking his dog, etc, I'd expect to be allowed to sell that photo.

But I'm really not sure if this situation is the same, or if paintings are treated differently.

 

[decksnap]

But in that case, his image is used to represent a product or brand he never agreed to represent or associate with. With a painting, I think it's a bit different. I would have thought a painting of a photo, if explicitly stated that MJ didn't privately pose for the painting, would be legally OK. I'd expect the same rights if I took a photo of him, even if various brand names and logos were present in the photograph (his brand, another brand, whatever). If I tried to advertise a product using this photo, then that would be illegal. It's understandable, as he never agreed to represent my product. However, if I took a photo of a person on the street, or at a basketball game, museum, walking his dog, etc, I'd expect to be allowed to sell that photo.

But I'm really not sure if this situation is the same, or if paintings are treated differently.

But what if you were a professional photographer and someone copied your photograph and sold it? That's what's going on here, so regardless of the legality of using Jordan, you can't just copy someone else's photo and sell it.

 

[Abstract]

Well he's not really making a copy of a photo. He's just getting Jordan's pose, I'm assuming. That's why his brother changes the background and other details a bit.

But you're probably right. It's probably illegal. That's actually my feeling as well, but I just wanted to point out how tricky the situation is.

 

[Sdashiki]

But what if you were a professional photographer and someone copied your photograph and sold it? That's what's going on here, so regardless of the legality of using Jordan, you can't just copy someone else's photo and sell it.

Of course you can.

A photo I take is mine to do what I please with.

If you copy my photo and sell it, thats stealing.

If I take your photo in a public place, even without your knowledge, and sell it (without any hint of slander/libel associated), you cant do squat if I sold it.


Who is anyone to tell me I cant sell my own artwork just because the subject may be someone famous?

 

[LethalWolfe]

Well he's not really making a copy of a photo. He's just getting Jordan's pose, I'm assuming. That's why his brother changes the background and other details a bit.

But you're probably right. It's probably illegal. That's actually my feeling as well, but I just wanted to point out how tricky the situation is.

That could still be seen as a derivative work as he's copying the central point of the photo (Jordan). An analogy might be like if I read a really good book, turned it into a screen play but I changed the character names and some other minor details, then tried to sell the screen play as my own idea. Yeah, the screen play isn't exactly like the book, but it doesn't need to be to get me in trouble. Changing the character names and settings doesn't make it an original work. The OPs brother still should contact a lawyer specializing in copyright/IP law.

If I take your photo in a public place, even without your knowledge, and sell it (without any hint of slander/libel associated), you cant do squat if I sold it.

Not necessarily.

Who is anyone to tell me I cant sell my own artwork just because the subject may be someone famous?

Because even famous people have rights too.


Lethal

 

[shecky]

Read this about making paintings from photos:

'The creator of the photograph, i.e. the photographer, usually holds the copyright to the photo and, unless they've expressly given permission for its use, making a painting based on a photo would infringe the photographer's copyright. In terms of US copyright law: "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work." You may be able to obtain permission to use a photo for a derivative work from the photographer, or if you're using a photo library buy the right to use it."

part of this set of articles about artists copyright.. You can also read from the source at copyright.gov.

 

[Sdashiki]

I still think the publicity from being sued by a celebrity for such things is worth it for the future of your artistic career.

People will want what they want, and people will sell it to them.

Personally, someone says "hey I want you to paint this" where "this" could be literally anything...
if they pay me to paint it for them, is that different than creating it first THEN selling it?

 

[Antares]

Unless HE took the picture, I'm guessing this is where it gets illegal.

Exactly. If you create a painting based on someone else's photograph, that does cross the copyright barrier. Your brother would need to get permission form the copyright holder of that photograph to sell any print of a painting based on the photograph. Changing the jersey color and background will not hold up in a copyright lawsuit. This has been proven many times in the past (with similar cases).

If your brother took the picture, then there is no issue. Also, painting a picture of the shoes is okay (it's like a still life painting....unless your brother is painting someone else's photograph of the shoes).