Owings Mills, MD asked in Business Law, Copyright, Intellectual Property and Trademark for Maryland

Q: I own a collection of action figures (superheroes, Godzilla, ect.) Can I use photos of them to make t-shirts or posters?

1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: Use of trademarked and copywrited products and characters in other products for sale is not permitted and will subject you to possible lawsuits and damages which will include forfeiture of all profits from such sales, payment of attorney's fees and court costs, plus possible punitive or exemplary damages--not to mention an injunction. If you are making the t-shirt or poster for your personal use, to wear or display as art and not sell to others, then such use is protected as artistic expression. In some cases, use of existing products and trademarked or copywrited materials in an original artistic work of art, and displayed in a gallery, are not prohibted. Artist Andy Warhol famously did not seek — nor was he required to seek — permission from the Campbell’s Soup Company for his famous 1962 painting of a can of Campbell’s soup because it was a non-infringing use of a trademarked label, created by Warhol in an artistic medium and displayed in an art setting. The public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products. Of course, Campbells also did not to sue or test the law as they welcomed the publicity the artwork generated.

Freedom of commercial speech, on the other hand, is more restricted than artistic speech. If Warhol had put the soup can image on T-shirts or greeting cards, he would have had a problem defending a trademark infringement lawsuit because they aren’t traditional artistic media. Moreover, Warhol was sued several times over his unauthorized use of others' works, including once over his recreation (in silk screen format) of another artist's photograph where he did not obtain permission in advance, and he settled that suit with a cash payment to the photographer. He negotiated a permissive use license for his use of a converse sneaker on another occasion.

In short, you cannot expect to make money --and keep it-- off of another person's (or company's) intellectual property.

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