Somewhat tongue in cheek, we looked on Wednesday at the potential copyright implications from a back and forth between Governor Charlie Baker and Barstool Sports, which sells “Free Brady” T shirts (playing on Shepard Fairey’ famous Hope image) challenging the New England Patriots’ quarterback’s suspension by the National Football League (“DeflateGate” or “Ballghazi,” depending on who you ask). Gov. Baker recently wore a competing vendor’s “Free Brady” T shirt when doing the Ice Bucket Challenge. Given the sales potential arising out of one of the biggest stories in the country right now (insert decline-of-society comment here), however, the financial stakes are no laughing matter. The response to Wednesday’s post has been overwhelming; we had more visitors in a three-hour window than we typically get in a month.
The Boston Globe wrote an article about the dispute yesterday, but did not really delve into the legal framework that would control the outcome (addressing more the economic impact of high profile stories on merchandise). In response, Barstool channeled its best inner lawyer and made its case for originality. First, Barstool noted its Tweet on the day of the suspension, noting the date (May 11, 2015) and time (6:03 p.m.):
Click here to view image.
Next, Barstool points out that the competing vendor, I Love Boston Sports, posted on the same day, advertising a T shirt challenging the allegation of misconduct (somewhat off-color and not repeated here) and also invoking the phrase “Free Brady.” As Barstool lays it out, it was not until June 2, 2015 that this appeared on the I Love Boston site:
Click here to view image.
The obvious implication is that whatever the origin or timing of the “Free Brady” idea (to which it would be difficult for anyone to claim ownership), the second image was in response to and copied the first.
Were Barstool to claim infringement (in which it has expressed disinterest, but there is no legal bar to changing its mind), since the T shirts are not identical, the test applied would likely be whether the images are substantially similar. As we said initially, the framing of the images certainly looks similar and derivative in our opinion. The timing makes a strong case underscoring that inference.
It remains to be seen, now, if economics compel taking a more forceful approach on anyone’s part.
Oh, and for those keeping actual score, Tom Brady did play briefly in the Patriots’ pre-season game. Oral arguments are set for August 19 on the suspension appeal.