VIC Intellectual Property Law - Selling a Product Based on Sportsman's Image?

[reinhm]

Hi,

The product in question is an air freshener that is designed to look like Dane Swan.The drawing used for the product is an original illustration, however, it is based off an image of the player that can be found on the club's website. Below is a picture of the original image as well as a picture of the actual product.

Would selling this product infringe on any IP and intellectual property law?

I would appreciate any help.

Thank you.
.

 

[Sophea]

Hi reinhm,

Copyright in the photograph belongs to the person who took it or who otherwise owns it. If you paint or draw a picture of a photograph, depending on how similar your drawing is to the precise photograph, you may infringe the copyright in the photograph, however if it is a generic enough picture of Dane, then you may be okay.

Using a picture of a celebrity to endorse a product without their consent, whether or not you own copyright to the image is another story altogether.
There are a few legal principles in Australia which may be used to stop the unauthorised use of an image:

1. defamation;
2. Australian Consumer Law; or
3. passing off.

In this case you may have an issue with the latter 2. The use of a person's image in connection with a product may be considered misleadinga nd deceptive conduct under Australian consumer law because the person is well known by the public. The unauthorised use of his image in connection with a product may lead the public to believe that he is endorsing the product when he is not. An example of this was when Kieran Perkins sued Telstra for the unauthorised use of his image in an advertisement which used a pic of him wearing a Telstra swimming cap accompanied by a statement. The court held that the photo together with the statement inferred that he preferred Telstra's service when in fact he had not made such a statement at all.

Passing off is similar - its essentially passing off your product under the "branding" of the celebrity's name.