ESPN using some of our members work

[shaydre1019]

They stole his effort but that is it. Cheap but not illegal. It's Luck in a Colt's jersey. Nothing original. This isn't even close to logo stealing.

Where the hell is gladsadmad anyway? I wanna hear his opinion on this.

It would be funny if he worked for ESPN.

lol. seriously.

[CrookedThumb]

K, just got back from talking to my Copyright professor about this. From what I told him, he thinks what gladsadmad did is likely a derivative work of the original photo of Luck playing for Stanford. Derivative works need permission from the original author/artist, but after letting him know of the circumstances surrounding the pic, my professor thinks it's Fair Use, so gladsadmad seems to be ok to make it.

Unless ESPN got permission from gladsadmad, they can't just use his photo on their Facebook page. Also keep in mind that Indy saying they're going to draft Luck is big news now, so using the photo to deliver their news story is a commercial use. gladsadmad might not get much in the way of actual damages (damage to him or profits made by ESPN DUE TO THE PHOTO), but my professor did remind me of the existence of statutory damages that a plaintiff in a copyright suit can choose to recover, instead of actual damages.

A few things I still need to mention:

-Like I said before, this is Copyright. If we talk about Trademark, this conversation goes in a whole different direction. Unfortunately the professor who taught my Trademarks class last semester is on sabbatical, so I can't ask for her opinion.

-Sometimes (like when in Contracts and general Torts), it may just cost someone less money to commit the offense/breach/tort and pay damages, rather than spend the money trying to prevent it from happening. I don't know the circumstances behind ESPN's use of the photo, but that may be the case here.

[BBTV]

K, just got back from talking to my Copyright professor about this. From what I told him, he thinks what gladsadmad did is likely a derivative work of the original photo of Luck playing for Stanford. Derivative works need permission from the original author/artist, but after letting him know of the circumstances surrounding the pic, my professor thinks it's Fair Use, so gladsadmad seems to be ok to make it.

Unless ESPN got permission from gladsadmad, they can't just use his photo on their Facebook page. Also keep in mind that Indy saying they're going to draft Luck is big news now, so using the photo to deliver their news story is a commercial use. gladsadmad might not get much in the way of actual damages (damage to him or profits made by ESPN DUE TO THE PHOTO), but my professor did remind me of the existence of statutory damages that a plaintiff in a copyright suit can choose to recover, instead of actual damages.

A few things I still need to mention:

-Like I said before, this is Copyright. If we talk about Trademark, this conversation goes in a whole different direction. Unfortunately the professor who taught my Trademarks class last semester is on sabbatical, so I can't ask for her opinion.

-Sometimes (like when in Contracts and general Torts), it may just cost someone less money to commit the offense/breach/tort and pay damages, rather than spend the money trying to prevent it from happening. I don't know the circumstances behind ESPN's use of the photo, but that may be the case here.

So it sounds like had ESPN gone to gladsadmad, he in turn would have had to go to the original artist for permission because his work is no longer 'fair use'.

[Sec19Row53]

K, just got back from talking to my Copyright professor about this. From what I told him, he thinks what gladsadmad did is likely a derivative work of the original photo of Luck playing for Stanford. Derivative works need permission from the original author/artist, but after letting him know of the circumstances surrounding the pic, my professor thinks it's Fair Use, so gladsadmad seems to be ok to make it.

Unless ESPN got permission from gladsadmad, they can't just use his photo on their Facebook page. Also keep in mind that Indy saying they're going to draft Luck is big news now, so using the photo to deliver their news story is a commercial use. gladsadmad might not get much in the way of actual damages (damage to him or profits made by ESPN DUE TO THE PHOTO), but my professor did remind me of the existence of statutory damages that a plaintiff in a copyright suit can choose to recover, instead of actual damages.

A few things I still need to mention:

-Like I said before, this is Copyright. If we talk about Trademark, this conversation goes in a whole different direction. Unfortunately the professor who taught my Trademarks class last semester is on sabbatical, so I can't ask for her opinion.

-Sometimes (like when in Contracts and general Torts), it may just cost someone less money to commit the offense/breach/tort and pay damages, rather than spend the money trying to prevent it from happening. I don't know the circumstances behind ESPN's use of the photo, but that may be the case here.

Thanks for your completely non-legal legal opinion Having never taken any of this type of course work, it's neat to hear from someone who has.

[CrookedThumb]

So it sounds like had ESPN gone to gladsadmad, he in turn would have had to go to the original artist for permission because his work is no longer 'fair use'.

Now see, that's a turn of events that would make this whole story a lot more interesting. I'm definitely not confident enough in my knowledge to give an opinion on that, but it's worth investigating. I might ask my professor that on Sunday.

Thanks for your completely non-legal legal opinion Having never taken any of this type of course work, it's neat to hear from someone who has.

Oh, you're welcome. Just wait till you read the paper I just finished writing about counterfeit jerseys and trademark infringement...

[Sec19Row53]

So it sounds like had ESPN gone to gladsadmad, he in turn would have had to go to the original artist for permission because his work is no longer 'fair use'.

Now see, that's a turn of events that would make this whole story a lot more interesting. I'm definitely not confident enough in my knowledge to give an opinion on that, but it's worth investigating. I might ask my professor that on Sunday.

Thanks for your completely non-legal legal opinion Having never taken any of this type of course work, it's neat to hear from someone who has.

Oh, you're welcome. Just wait till you read the paper I just finished writing about counterfeit jerseys and trademark infringement...

I would enjoy that. I'm a CCSLC nerd, after all.

[CrookedThumb]

I would enjoy that. I'm a CCSLC nerd, after all.

I'm sure a lot of people would enjoy it. When I find out my grade in a few weeks, I might inquire as to possibly posting it here. I actually used the Counterfeit Jersey mega-thread on this board as one of my sources, when I talk about why people are ok with buying counterfeit jerseys. I have to warn you all though, when it comes to my commentary, I take a strong stance against buying counterfeit jerseys (but that's another thread).

[BrandMooreArt]

thanks for all the info unimaniac. you're far more knowledgable about the topic than the rest of us.

its a big deal for ESPN because they are using it to promote their product/sell something. that was not the intention with GSM. i believe thats where Vet was going.

[bcdevil]

So it sounds like had ESPN gone to gladsadmad, he in turn would have had to go to the original artist for permission because his work is no longer 'fair use'.

Now see, that's a turn of events that would make this whole story a lot more interesting. I'm definitely not confident enough in my knowledge to give an opinion on that, but it's worth investigating. I might ask my professor that on Sunday.

I must say, unimaniac has done a darn good job in this thread. Copyright law can be nuanced and hard to explain to lay people and attorneys alike and he's done a great job of analyzing it and explaining it succinctly. It's my understanding (from a past life as a law student very interested in IP) that under the scenario posed, gladsadmad could not have granted ESPN permission to use his derivative work for profit without first getting permission from the holder of the original copyrights (the photograph, logos, etc.).

[CrookedThumb]

Aw, thanks guys! I'm actually studying (as I'm typing this) for my Copyright final right now, and like bcdevil, my law school career is centered around IP. And of course, you mix it with sports logos and uniforms, I'm having a field day right now.

[BigDmo]

So let me ask you IP experts this. I along with a few other guys (GSM knows) make custom sports game covers. We pull images from the internet and use them. We make our own templates featuring the logos of the game, etc. Here is an example:

Are these covers covered under fair use as long as there is no profit? Unlike a few dopes who sell these on eBay, me and this group of guys actually reject profiting in any way (people offer us money as thanks, etc.). I've been under the assumption what we are doing is fine as long as we don't profit, hell EA doesn't even care (we often get resources from them).

[CrookedThumb]

So let me ask you IP experts this. I along with a few other guys (GSM knows) make custom sports game covers. We pull images from the internet and use them. We make our own templates featuring the logos of the game, etc. Here is an example:

Are these covers covered under fair use as long as there is no profit? Unlike a few dopes who sell these on eBay, me and this group of guys actually reject profiting in any way (people offer us money as thanks, etc.). I've been under the assumption what we are doing is fine as long as we don't profit, hell EA doesn't even care (we often get resources from them).

Well, the two potential copyrights being implicated are the photo of the player and the game logos. If you're sure that EA doesn't care (as in, if asked, you can provide proof that they told you it's ok), then I think you're good using the logos. It's the photo that I'm worried about. The photographer may or may not make a good argument that your covers may have some effect on the market of the original photo (in what way, I don't know). That's the fourth factor in the fair use test, and it's a biggie. I would advise you to at least get an opinion from an actual IP attorney before going much further. I'm only a second-year law student, so not only am I not allowed to give actual legal advice to people, but I just don't have enough knowledge and training to answer a question like this with a definitive answer. But I do think you're at least treading the line. Keep in mind, an accused infringer pays both profits AND any damage the original holder suffers. So just because you don't make a profit, doesn't mean you're out of the woods.

EDIT - Plus so many different logos are being used, and you have to worry about trademark law. Trademark law is based on confusion, and if Joe Blow from off the streets sees a video came case with that cover inside, he may think that EA or Sony actually made that cover, which is the foundation of a trademark infringement case. Again, don't go by my opinion, but definitely get a more qualified opinion.

[bcdevil]

Don't take this in any way as legal advice but your dissemination of the covers (posting pics to websites, printing them out and sending them to people, etc.) is almost definitely not fair use. If you were just doing them for personal use, you might be able to argue fair use. With that said, this is a case where unless you are mass producing these, you would most likely never be contacted by the copyright holders and if you were, it would likely be in the form of a cease and desist letter before anything else. It's a kind of gray area because I get the impression that EA likes custom covers because they help spread their brand, encourage brand loyalty and don't have a negative effect on sales per se, but for a myriad of legal reasons, they would never openly endorse the practice.

[BigDmo]

Thanks for the knowledge fellas. I will definitely keep all of that in mind from now on. I like to make covers for people as a hobby but would obviously stop of I did get a C&D letter. But like I said, we've been in contact with EA people before and they have given us templates and stuff, so I'm not sure they care. As for the photographer, yeah I don't know, that is a good point. Hopefully I don't have to pay any damages and will get a kind C&D letter if someone doesn't like these.

[TornadoGTS]

Thanks for the knowledge fellas. I will definitely keep all of that in mind from now on. I like to make covers for people as a hobby but would obviously stop of I did get a C&D letter. But like I said, we've been in contact with EA people before and they have given us templates and stuff, so I'm not sure they care. As for the photographer, yeah I don't know, that is a good point. Hopefully I don't have to pay any damages and will get a kind C&D letter if someone doesn't like these.

Where were you at when MLB was handing out C&D letters? I think I've only made like 2 Show covers since then lol.

[shaydre1019]

Thanks for the knowledge fellas. I will definitely keep all of that in mind from now on. I like to make covers for people as a hobby but would obviously stop of I did get a C&D letter. But like I said, we've been in contact with EA people before and they have given us templates and stuff, so I'm not sure they care. As for the photographer, yeah I don't know, that is a good point. Hopefully I don't have to pay any damages and will get a kind C&D letter if someone doesn't like these.

Hey bigdmo do you ever have forums in the concepts section for covers?? I know I've seen your work in os.

[BigDmo]

Thanks for the knowledge fellas. I will definitely keep all of that in mind from now on. I like to make covers for people as a hobby but would obviously stop of I did get a C&D letter. But like I said, we've been in contact with EA people before and they have given us templates and stuff, so I'm not sure they care. As for the photographer, yeah I don't know, that is a good point. Hopefully I don't have to pay any damages and will get a kind C&D letter if someone doesn't like these.

Where were you at when MLB was handing out C&D letters? I think I've only made like 2 Show covers since then lol.

I don't know, I go incognito over the summer

Thanks for the knowledge fellas. I will definitely keep all of that in mind from now on. I like to make covers for people as a hobby but would obviously stop of I did get a C&D letter. But like I said, we've been in contact with EA people before and they have given us templates and stuff, so I'm not sure they care. As for the photographer, yeah I don't know, that is a good point. Hopefully I don't have to pay any damages and will get a kind C&D letter if someone doesn't like these.

Hey bigdmo do you ever have forums in the concepts section for covers?? I know I've seen your work in os.

Yeah, I'm not sure if I did one for last year since I wasn't really taking requests (too busy). But I did for '10. I'm mostly over at Sports Covers World though.

[andrewharrington]

K, just got back from talking to my Copyright professor about this. From what I told him, he thinks what gladsadmad did is likely a derivative work of the original photo of Luck playing for Stanford. Derivative works need permission from the original author/artist, but after letting him know of the circumstances surrounding the pic, my professor thinks it's Fair Use, so gladsadmad seems to be ok to make it.

Unless ESPN got permission from gladsadmad, they can't just use his photo on their Facebook page. Also keep in mind that Indy saying they're going to draft Luck is big news now, so using the photo to deliver their news story is a commercial use. gladsadmad might not get much in the way of actual damages (damage to him or profits made by ESPN DUE TO THE PHOTO), but my professor did remind me of the existence of statutory damages that a plaintiff in a copyright suit can choose to recover, instead of actual damages.

A few things I still need to mention:

-Like I said before, this is Copyright. If we talk about Trademark, this conversation goes in a whole different direction. Unfortunately the professor who taught my Trademarks class last semester is on sabbatical, so I can't ask for her opinion.

-Sometimes (like when in Contracts and general Torts), it may just cost someone less money to commit the offense/breach/tort and pay damages, rather than spend the money trying to prevent it from happening. I don't know the circumstances behind ESPN's use of the photo, but that may be the case here.

So it sounds like had ESPN gone to gladsadmad, he in turn would have had to go to the original artist for permission because his work is no longer 'fair use'.

The way I see it, the only copyright issue here is the use of the photo, and ESPN should be taking care of that by purchasing the original photo from Getty or wherever it came from, making sure the license says it's okay to alter it, and so on. The use of team logos and imagery, as well as the use of Andrew Luck's likeness, is fair use.

Gladsadmad shouldn't really have anything to do with any copyright issues here. ESPN should theoretically be paying him for the hours he spent altering the photo. It gets kind of weird in this case because it wasn't commissioned work, rather it was already done as part of a personal project and ESPN now wants to use the photo after the fact, but theoretically gladsadmad is selling ESPN the hours he spent working on the photo, not the photo itself, and ESPN should have to cut through the copyright jungle since it is the one using the image for profit.

At least that's what I would have specified in the contract.

[CrookedThumb]

Totally unexpected answer from my Copyright professor:

If it's true that gladsadmad's photo was Fair Use when he made it, it keeps it's Fair Use status even if he lets ESPN put it on their website, and the original photographer does not have a claim. And it seemed like that applies no matter whether ESPN gave gladsadmad any money to use it or not.

At least, that's what it seemed like to me...

[BrandMooreArt]

Totally unexpected answer from my Copyright professor:

If it's true that gladsadmad's photo was Fair Use when he made it, it keeps it's Fair Use status even if he lets ESPN put it on their website, and the original photographer does not have a claim. And it seemed like that applies no matter whether ESPN gave gladsadmad any money to use it or not.

At least, that's what it seemed like to me...

thanks for the update. interesting answer