Friday, February 24, 2023

Bobbleheads and Baseball Cards: Does Pairing Make it Less Risky?

Bo Jackson photo by Chris Putnam (altered)
Dear Rich: I’m trying to figure out if I can pair a sports card displayed with a piece of matching bobblehead art featuring celebrity/athlete likenesses for sale in a limited offering (maybe 100-250 of each). I know selling celeb art is risky business but what happens when it’s paired with something of value that is perfectly legal to sell like a card. For example, I made a Christmas-themed bobblehead of Bo Jackson inspired by his 1990 scorecard. Would the bobblehead alone be considered transformative art?
Selling an infringing item with a non-infringing item doesn't excuse the infringement. No matter how you look at it, you're distributing infringing merchandise. 
Are you infringing? If you sell merchandise with an athlete's name or likeness, you're probably violating what's known as the "right of publicity." Celebrities and sports figures have the right to control their image and name when it is exploited to sell something (even if they're deceased). If you're mass-producing bobbleheads and the athlete's law firm learns of your activity, you may receive a cease and desist letter. 
BTW, it doesn't matter if the use is transformative. That's a standard used in copyright law, which is a different legal claim.

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