Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL’s investigation of and rules against Tom Brady are a travesty, and they’ve resulted in uncalled-for penalties. And it’s all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk has also covered the story well.

In our domain—the realm of visual art (and don’t forget, Brady’s victory in the Super Bowl was the same game that gave us Left Shark)—however, the story has provided an unexpected and interesting angle this week. The creation of the “Free Brady” T shirt has spawned knockoffs that included one recently worn by the governor in a high-profile appearance. In sum, the creator of the original Free Brady T shirt may well have claim of copyright infringement against its knockoff competitors.

Shortly after the May suspension, the website Barstool Sports began selling this T-shirt:

Click here to view image.

In an interview on Tuesday in Metro, Barstool president David Portnoy said that:

he dreamed up the idea for the shirt, and started selling them online “within 30 seconds of the suspension” and about two weeks before anyone else.

Ironically, the T shirt is a riff on Shepard Fairey’s Hope image of then-Senator Obama during the 2008 Presidential campaign. That image, of course, was itself the subject of a highly-watched fair use case brought by the Associated Press photographer whose image of Obama was incorporated and altered by Fairey. The case settled without any judicial opinions about whether it was fair use.

This week, Massachusetts Governor Charlie Baker took part in the second annual Ice Bucket Challenge, in which people video themselves dumping a bucket of ice water over their heads and challenging friends and acquaintances to do the same to raise awareness and money for ALS research. Notably, he was wearing a “Free Brady” T shirt, except his was red, and the image of Brady was different. Instead of Barstool’s picture in which Brady is biting his lip, wearing a white jersey and looking to his left, Baker’s shirt showed Brady looking to his right, and wearing a blue jersey and dark knit winter cap.

Click here to view image.

Barstool responded playfully by “demanding” an apology.  Baker (equally playfully) apologized, Portnoy accepted his apology while teasing Pete Frates, the man who invented the challenge, and all was well. As is often the case, not taking oneself too seriously avoided a greater escalation. Portnoy was paraphrased in the Metro article as saying that he “can’t make a legal claim on the likeness of a football star.”

But I’m not so sure that Portnoy doesn’t have a more basic copyright claim.  Think of it this way: if someone copied an Andy Warhol painting of Jacqueline Kennedy, her fame would be no defense to infringement in and of itself.  Portnoy’s image is an original creative work that is copyrighted. There is no doubt in my mind about that. And there is equally no debating that the later T shirt was, at least conceptually, a copy.

Whether Portnoy could sue to me breaks down into two questions: was there actual copying within the Copyright Act, and could the second T shirt artist claim fair use?

As to the first question, Portnoy can’t claim a copyright in the phrase “Free Brady.” Words and short phrases are not eligible for copyright protection, nor is the mere idea of a T shirt taking up the cause of Tom Brady. Nor, I think, is there sufficient affiliation in the public’s mind with Barstool specifically that a trademark could be claimed in that phrase (though this recent flap could change that). But consider the visual image. The way the words are framed is nearly identical, overlapping Brady’s face and torso. The image, as noted above, is not the same, but both selected a picture of Brady looking off-camera into the distance, with a somewhat soft-focus stare. The composition, certainly, is intentionally duplicative.

Assume then for discussion that the new shirt could be considered to have copied the Barstool version. Could it nonetheless claim fair use? Here I don’t think so. A recap of the ever-present fair use factors from § 107 of the Copyright Act:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Whether or not one goes all in on the “transformative” test that has come to dominate the question of visual arts fair use, this analysis would be very different because of the commercial nature. The new T shirt is not part of an expressive conversation with the older shirt, it is in commercial competition. Advantage, Barstool. And the last factor probably overwhelms the rest (again, which is more unusual for visual images). The new T shirt is specifically designed to displace sales of the older one. It’s a zero sum game: once I’ve bought a Barstool T shirt, I’m not likely to buy a second one. But if the knockoff version gets to me first, I might well buy it and then not buy one from Barstool.

Barstool is likely happy enough for the added publicity, but unlicensed consumer goods are big business and a big problem for the actual creators and licensees. So buy a properly-licensed T shirt.

And for goodness sake, Free Brady already.