OT (for MGoLawyers) - Question about selling someone's likeness

Submitted by RogueRage on

I know we want to move on from the game this past Saturday but I just have a question for the MGoLawyers. A friend of mine (shown below) is the infamous shocked Michigan fan shown right after the end of the game. 

Using this image, an Ohio t-shirt company has started to sell a shirt, called "The Disappointment Up North", with his face on it (the shirt can be seen below).

My friend did not give this company permission to use his image. We were just wondering what courses of actions we can take because this company is profiting from his likeness without him giving them the rights to his image. Our main goal isn't money - we just think it's unfair that they are making money without any permission from him. So our question for all you MGoLawyers - what should/can we do?

Link: http://www.cincyshirts.com/index.php/cincyshirts/cincyshirts/the-disappointment-up-north.html

Huma

October 20th, 2015 at 1:36 PM ^

Hire a lawyer and have them draft a cease and desist letter. Your friend did not give right to use his likeness / his rights of publicity.

Team 101

October 20th, 2015 at 1:53 PM ^

Agree with Huma.  With the actual picture of your friend on the website there isn't a doubt whose likeness it is.  Usually these things have a way of settling themselves without court action.  I kind of like the shirt - maybe you can get something from the T-shirt company in exchange for letting them sell it.

UMfan21

October 20th, 2015 at 1:37 PM ^

Not a lawyer, I have no answer.

 

Just wanted to say "hang in there" to your friend.  When it happened, and they showed your friend I realized I had my hands on my head and the same look on my face.  It was like looking into a mirror.  He captured the exact feeling I was having at the same time.

I figured someone would "meme" him.  Good luck getting that company to cease and desist.

bronxblue

October 20th, 2015 at 2:38 PM ^

Yeah, a quick letter should suffice to make them stop; I doubt they ran off a large number of prints beforehand (this looks like a to-order site), but just to be sure make sure they don't try to sell those off either.

Yeah, it's kind of a crappy thing to do, and I'm surprised their lawyer didn't give them a heads-up about it.

LSAClassOf2000

October 20th, 2015 at 2:34 PM ^

I saw this thread and was ready to quote the kiosk rule because nearly all of these threads tend to fit in that category, but no, this one has at a secondary connection to the blog itself in that this is the friend of a user. 

I suppose if the C&D warning doesn't work, there is always suing for the business itself and - if successful - turning it into a cooler factory. That might be a little extreme though, so I don't recommend that. 

Jeff94

October 20th, 2015 at 2:08 PM ^

I remember Sparty's wearing App State shirts at the 2007 game. It felt so great to not only win that game, but to do it in comeback fashion. Also, in case people forgot, Dantonio started the trash talk with his "moment of silence" comment. I honestly can't wait until Harbaugh puts a Stanford/USC style beatdown on him.

Esterhaus

October 20th, 2015 at 1:54 PM ^

 

Your friend would almost certainly prevail at trial. If I was handling the matter, my advice would be to file a complaint in federal court tomorrow, seek emergency injunctive relief (a small bond likely would be required) concurrently - this almost certainly should be granted because the shirt holds your friend up for ridicule, and only then should your friend be willing to entertain negotiations. Following this process, your friend could expect to shut down all further sales immediately and collect a tidy settlement. There is no defense available to the company, it's an easy case to win. Good luck.

evenyoubrutus

October 20th, 2015 at 1:56 PM ^

I would sue for money. They have already made some off of it (probably a lot) and if he doesn't want to get rich from it he could donate it to charity. Maybe an anti bullying organization.

Genzilla

October 20th, 2015 at 2:00 PM ^

Send a cease and desist warning.  Doesn't even have to be written by a lawyer

edit: unless you want money (which you're entitled to, people with shitty business practices should have to pay people they try to take advantage of).  In that case, sue

Esterhaus

October 20th, 2015 at 2:36 PM ^

 
This is terrible advice. The friend should see a lawyer experienced in these matters asap.
 
Right now, no defenses are available to the company. If the friend sends his own c&d letter to the company, the equitable defense of acquiesence triggers and the clock starts running. If the friend does not sue soon, the company may rightly invoke acquiesence as a defense.
 
It's true that you can prevail on your own in some matters without hiring a lawyer but in majority cases, especially a somewhat technical one as this, the plaintiff almost always shoots herself in the foot and the accused suffers nothing except its own attorney fees. 
 
When my clients receive a homebaked c&d, we generally do nothing except to reply with a counterletter stating we take the claims seriously, we are investigating the matter, and we will get back in touch with the other party if appropriate. And then we do nothing because odds are the sender will do nothing and now time operates in our favor. 0.02

DGlenn26

October 20th, 2015 at 2:03 PM ^

You should contact the Civil-Criminal Litigation Clinic at the Law School to see if they can take on your case. It'd be free for you and I'm sure some of your classmates in the law school would love to help stop this nonsense. As previously noted, your case is a slam dunk, so you should take all of their profits and something for emotional distress and give it to Mott. 

 

https://www.law.umich.edu/clinical/generalclinic/Pages/contactus.aspx

 

 

Urban Warfare

October 20th, 2015 at 2:47 PM ^

I'd be surprised if they took the case.  There are issues of personal jurisdiction in that the defendant is an Ohio based company who does not appear to do business in Michigan.  Moreover, given that the possible defendant(s) reside in Ohio, and the acts that gave rise to any claims occured in Ohio, it's likely that the proper venue for the action would be in Ohio, specifically the Hamilton County Court of Common Pleas.

None of this should be construed as legal advice.