Friday, July 24, 2009

Selling Michael Jackson Jewelry

Dear Rich: I have questions: is it legal to sell jewelry with Michael Jackson's pictures? The images are all over and I wonder if it is legal. What if the seller is just charging for the craft and not for the image? Is that OK and legal? Final question, is it OK to buy these jewelry items or is the buyer breaking the law as well?  (1) Selling MJ jewelry probably violates Jackson's trademark rights (hey, if you're in D.C., check out the USPTO tribute), his right of publicity (which passed to Jackson's estate under California law) and may also violate copyright law, unless permitted as a fair use.  (2) We don't understand your second question and we don't think a judge would either. If a crafts artist includes an infringing work on its product, it's an infringement no matter how the price is explained. Otherwise, bootleg DVD sellers could claim the buyer was only paying for the DVD not the pirated movie. (3) In some instances the buyer of an infringing work may violate copyright law depending on the intent and use of the purchase -- for example, if the buyer resells it, displays it or in any way contributes to or encourages the infringement. The pursuit and prosecution of buyers is not common. Copyright owners are more interested in sellers of infringing merchandise. So, if it's illegal, you may be wondering why the estate doesn't do something to stop the tsunami of infringements. Probably it's so overwhelming that if enforcement is taking place, it's for the most egregious and damaging offenses.

Beat It: Finding MJ Imagery
By the way, the photo above by Dutch photographer Sjors Provoost is one of a few MJ-related images available for commercial reuse under the terms of a Creative Commons license. To find these re-usable images, begin your search using Google Image Search, then click Advanced Image Search and under "Usage Rights" choose the drop down that applies for your search -- for example, "labeled for commercial reuse with modification." Each photo should provide instructions on your rights to reproduce.