New Discussion: The Little Things Can Also Cost You from a Legal Standpoint!

Lawsuite Article

The importance of considering the little things in an advertising piece as a potential distraction to the primary message can no doubt be important (see recent post: Really – Sweat the Little Things! (1/8/2013)). But, occasionally those little things that seemingly innocuously creep into artwork for an advertising piece or product package can also get you in hot water from a legal perspective as well.

Recently, Electronic Arts, Inc. and former professional football player Ricky Williams were sued in Louisiana federal court (Case No. 5:12-cv-03172) by a tattoo artist who alleges that EA infringed his copyrighted tattoo artwork when it put an image of Williams on the cover of several of its video games (“NFL Street”, “Madden NFL 10” and “Madden NFL 11”). Specifically, the artist has alleged that the images used on the game covers show tattoo artwork that he inked on Williams’ arms in 2003 and that this artwork is original and copyrightable subject matter. The complaint further alleges that EA copied, reproduced and distributed the copyrighted tattoo artwork without the consent, permission or authority of the tattoo artist, thereby infringing the artist’s copyright.

The tattoo artist has asked the court for (among other things) an injunction prohibiting EA from continuing the alleged infringement as well as EA’s profits and any revenues that Williams realized from his exploitation of the artwork. Additional liability could also potentially be sought if the court finds that the alleged copyright infringement was intentional or purposeful. Thus, although the
defendants have not yet answered the complaint, and this case is long from being decided, the cover artwork allegedly used in connection with EA’s video games has already exposed EA to potential liability.

Regardless of ultimate outcome of this particular case, those in the design community (and those charged with reviewing and approving commercial artwork) should be aware that all elements of a proposed design, even aspects that may be personally perceived to be innocuous or peripheral to the ultimate message, can pose a potential legal risk to a prospective client or business. Although it is unlikely that every potential legal risk can be identified or predicted, or that a client can be 100% shielded from an unsubstantiated legal claim, careful legal scrutiny of commercial artwork or images or other visual representations could diminish a client’s risk of incurring an adverse legal claim.

George S. Pavlik
Husch Blackwell LLP
George Pavlik is an attorney in the Chicago, IL office of the law firm Husch Blackwell LLP. He works in the firm’s intellectual property department and routinely assists clients in matters involving patents, trademarks, copyrights and false advertising. The opinions expressed above are those of the author and do not necessarily reflect the views of Husch Blackwell, its clients or any of its or their respective affiliates. This article is for general information purposes only and is not intended to be and should not be taken as legal advice.

About Nate Marks

We live and work in a world of visual images.
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One Response to New Discussion: The Little Things Can Also Cost You from a Legal Standpoint!

  1. Mike Willett says:

    Here we go. Hold on tight. When the legal community gets involved in commerce, you had
    better beware. As I began this comment, my youngest, who is involved in the merchant services
    industry, came in to tell me that Visa and Mastercard sued to be able to add on fees, and won.
    The consumer in this country, tends to overlook small items that eat a hole in their finances, but
    will they continue?
    In Florida, where I live, many gas stations are advertising and offering cheaper prices if you use their
    brand of credit card to purchase gas from them. I notice that they have lost business doing it, and
    opened the door for cheaper prices and more business for their competition. This is a field that will
    become a hornets nest in the process, and the consumer will be in the middle. That said, however, the
    smart consumer will win this one, and the merchant may very well lose.

    How does this work for the advertiser and the can of worms this may very well cause them? Are you
    ready to hire an attorney to check your every move? If not, get ready to do just that. Our World
    becomes more and more complicated and if the advertiser is not aware of these challanges, it could
    cost them a fortune.
    opened the door to competition actually b

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