Why is Star Wars a copyright issue but a MLB team is not?

Question

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)

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.

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?

Regarding this potential duplicate which questions whether a trademark can be used by a political campaign without permission and the most upvoted answer is of course, "it depends," 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?

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:

As this is more than just stylized lettering, it seems this would presumably be subject to copyright.

So, you were essentially walking in public in a Star Wars t-shirt, making an illegal public performance of a copyrighted artwork? /sarcasm — Dmitry Grigoryev, Apr 25 '23 at 08:05
Maybe the photographer is not competent enough in this matter (copyright and trademarks). Is there "Star Wars" text on t-shirt or only image? — i486, Apr 25 '23 at 09:24
@DmitryGrigoryev assuming the shirt was bought from an licensed dealer, it is part of the implied warrant of merchantability of a shirt that it can be worn in public. In fact, it could be argued that this IWM also includes taking pictures while wearing it. The copyright license was paid through the royalties from the shirt sale. - - - - - There's also the First Sale Doctrine, that grants the owner the right to display the article. - - - - And that's why we will soon have apparel subscriptions, to void those rights. — Mindwin Remember Monica, Apr 25 '23 at 11:23
Likely the simplest answer is Disney is notoriously zealous in protecting it's intellectual property and it's likely that the MLB team was within the politician's constituency and thus would be less likely to sue as they want to be on the good side of any candidate that wins. — hszmv, Apr 25 '23 at 12:01
You might have been deceived. It's possible the politician thinks Star Wars is for people on the fringe aka kooks, but MLB is mainstream and 100% American. You were provided with a t-shirt that reflects the politician's POV and misled as to the reason. — Wastrel, Apr 25 '23 at 15:05
Also, was it an actual licensed T-shirt or one of the countless thousands of unlicensed T-shirts available on the internet and elsewhere which feature Star Wars characters without being licensed? — Jack Aidley, Apr 25 '23 at 16:09
I think there might've been a copyright issue if, for example, you were walking around in a full Darth Vader costume (or even something a bit less extreme like Obi Wan), but a T-shirt seems like it should be safe... — Darrel Hoffman, Apr 25 '23 at 19:00
Pretty sure Star Wars is owned by Disney which is disliked by certain politicians on the far-right https://www.youtube.com/watch?v=j1jkilao3MQ this might also be a reason for the request. — , Apr 25 '23 at 23:29
@jamesdlin While I understand not wanting to be associated with Reagan, a photographer in 2023 wanting to hide someone in a Star Wars shirt because of a 40-year-old defense initiative seems like the least likely explanation. — Azor Ahai -him-, Apr 26 '23 at 04:39
@DavidMulder that provides an interesting viewpoint, but seems to come to the opposite conclusion whereby a candidate removes a logo entirely to avoid copyright concerns; but in my case they've removed the depiction of a Star Wars character and replaced with an MLB logo. Per the cited question, the logo would be removed as a matter of course due to a copyright concern. — Pyrotechnical, Apr 26 '23 at 13:29
@Pyrotechnical For one: Be careful to differentiate copyright from trademark law. And beyond that: I take this question to be 'What laws apply to this situation' (on topic for this stack) not 'What went through the head of the photographer' (off topic) — David Mulder, Apr 26 '23 at 14:15

KFK · Answer 1 · 2023-04-27T11:54:51.383

From the mention of a MLB shirt, I am going to assume the OP is located in the united-states.

Logos are (in general) copyrightable

Anything with a modicum of creative input is by default copyrighted. This includes both film shots from movies and logos of sports organizations.

"Modicum of creative input" is known as the threshold of originality. That legal doctrine is in force in the US, but not in other jurisdictions - for instance, the UK uses "sweat of the brow" where creativity is not needed to obtain copyright protection.

A still shot from a film set almost surely passes the threshold of originality. However, some logos do not.

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.

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?

Incidental use

It might 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.

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, "putting it on and walking around" 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.

Note a recent case in Germany (link to judgement, in German) 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 morally acceptable is of course another thing entirely.)

Non-legal explanations

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.

With regard to the case in Germany you mentioned: a neighbouring court came to the opposite decision in a similar action and even called the action unfaithful.. — sloth, Apr 26 '23 at 06:49
Your discussion of wearing the shirt publicly is inaccurately argued. 17U.S.C§109(c) (emphasis added): "Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." Wearing the shirt publicly is an explicitly granted right. — Makyen, Apr 26 '23 at 15:38

score 9 · Answer 2 · answered Apr 25 '23 at 14:34

Fair Use is in the eye of the beholder

Fair Use is the idea that you can use copyrighted materials to the extent that there's no direct copying. The Copyright Act of 1976 is where Fair Use is defined

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:

the purpose and character of the use, including whether it's of a commercial nature or for nonprofit educational purposes

the nature of the copyrighted work

the amount of the copyrighted work used in relation to the copyrighted work as a whole, and

the effect of the use upon the potential market for or value of the copyrighted work.

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.

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?

Copyright litigation is prohibitively expensive

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) won $6750 and an injunction against a Pottermore book, 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.

If you're making money, litigation odds go up

"Weird Al" Yankovic, for instance, parodies popular songs. He could make a Fair Use case, but, as he's making money in the process, it's safer to just license the music instead

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.

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.

Does the copyright holder like the use?

What's the difference between MLB and Disney? My bet would be something to do with this

I was asked to be part of a photo shoot for a political candidate.

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 Florida Governor Ron Desantis

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.

The open secret here is that you can sue anyone for copyright infringement, even if there's a strong case for Fair Use. Not liking the person you're suing can play a role in suing for copyright infringement

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 "Hoss" 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.

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.

score 3 · Answer 3 · answered Apr 24 '23 at 20:33

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Logos aren't copyrightable. Artwork is.

Not a lawyer, but my understanding is that logos aren't copyrightable, but artistic designs are.

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).

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 four factors 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.

answered Apr 24 '23 at 20:33

nick012000

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There is also an issue with titles - the title of a single movie is less protectable as the name of a series of movies (or books). Star Wars is the nave of a series. Not sure the photographer is aware of the distinction. – George White Apr 24 '23 at 21:40
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@GeorgeWhite It doesn't sound like the Star Wars t-shirt had the Star Wars logo on it, but artwork depicting one of its characters. The design on that t-shirt would be protected by copyright, while a simple logo would not be. – nick012000 Apr 24 '23 at 21:55
I agree with that thinking – George White Apr 24 '23 at 22:01
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-1 logos in general are definitely copyrightable. They are protected both by trademark and copyright law. Many logos are not copyrightable in the US because they do not meet the threshold of originality (basically: text and simple shapes) but the OP makes no mention of which MLB logo it was. – KFK Apr 25 '23 at 08:37
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@KFK indeed, logos are artwork (but some baseball logos that are sufficiently original to be protected by copyright will be in the public domain because of their age). Nick012000: a logo that is protected by copyright law is also protected by trademark law; it's not an either-or proposition (and the design of, for example, a Star Wars storm trooper mask is protected by trademark law as well, in addition to copyright). – phoog Apr 25 '23 at 10:54
@phoog "artwork" is not a relevant category for copyright law. An impromptu speech by a drunkard (about important subjects such as my inclination to casual sex, the cognitive abilities of current politicians, and so on) would be protected by copyright (if it’s long enough). A two-word slogan for the latest Apple product (decided after hours of work by highly-paid creative professionals) would not be. – KFK Apr 25 '23 at 11:13
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@KFK I was referring to the heading in this answer "Logos aren't copyrightable. Artwork is." This implies that logos are not artwork, which is incorrect. As to "artwork" as a category for copyright law, it most certainly is under the Berne Convention, which extends its protection to "literary and artistic works," and it is furthermore reasonable to use "artwork" as (casual) shorthand for "pictorial, graphic, and sculptural work," which is a category protected under US law. – phoog Apr 25 '23 at 11:32
@GeorgeWhite Star Wars shirts I've seen tend to have artwork depicting a particular movie/show along with the logo of the series, not usually the title of a specific movie. – Barmar Apr 25 '23 at 14:06
@phoog: I think the intended implication is that a logo may contain copyrightable artwork, but would not have a copyright separate from that artwork. The eagle graphic in the American Airlines logo is probably protected by copyright, and I would expect that both the eagle graphic and the logo with the text "AmericanAirlines" in Helvetica below it are trademarked, but I don't think merely adding text in a common typeface below the logo would create an artwork that would be viewed as a distinct work. Even if the text wasn't added until years after the eagle graphic was drawn, I would... – supercat Apr 25 '23 at 16:33
...that once the copyright on the logo lapses, the logo as a whole would (from a copyright perspective) be entirely in the public domain. – supercat Apr 25 '23 at 16:34
@supercat it's quite likely that you're right about the intended implication, but statements are often taken out of context so the more correct they are without relying on context, the better. A logo involving a short word or phrase in a standard typeface still involves other copyrightable creativity, however, including placement, scaling, and choice of color. On top of that, the American Airlines logo doesn't use Helvetica, though the trademark registration does not identify the font. – phoog Apr 27 '23 at 08:26
@phoog: I'd forgotten that American Airlines had changed their logo; I was referring to the very similar logo which dates back to the 1960s, and didn't feature a 2013 font. I think that a logo which combines two or more fonts and colors, or uses unusual letter spacing, might have enough creativity to merit copyright protection, though so far as I can tell that would be up to a jury to decide. I don't think selecting a single font and color, using default letter spacing, would suffice, however. – supercat Apr 27 '23 at 15:09

score 2 · Answer 4 · answered Apr 25 '23 at 21:00

Before COVID, I taught acting & modeling. We had a few sessions that were photo shoots. We instructors, and the photographers would also make that same comment.

The other answers discuss the legal issues. I will answer from another perspective.

Saying "...to avoid copyright issues..." is a clear, quick and convenient way of saying it. It may not be completely for legal reasons.

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).

Consider these scenarios:

"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!"

"(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."

"Why in the world would <person/organization associated with the production of Star Wars> want to support ? That's disgusting. I will never watch another thing <person/organization> does."

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).

TL;DR:
Here's what I told my students:
"If they ain't paying you to represent them, don't wear their stuff."
That made a lot more sense to them. The end result is the same, just the rationale is different.

$0.02

The other answers discuss the legal issues. I will answer from another perspective. If you have to write this, you should probably not answer a question on law.se. — KFK, Apr 27 '23 at 11:53