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  • Writer's pictureDavid Baker

REMEMBER WHEN? DeflateGate Exchange Sparked Copyright Mayhem

As my former law partner, Jim Morse will attest (he’s a graduate of Boston University), few are revered in New England quite so much as Patriots quarterback Tom Brady. With rugged good looks, a beautiful model-turned-wife, and a history of game-winning performances in the NFL, Brady is spoken of in and around Boston in reverential tones normally reserved for saints or maybe the Pope.

So, when the NFL decided to hand down a controversial punishment (a 4-game suspension) for the star quarterback’s involvement in the deflating of Patriot footballs used in the 2015 Super Bowl, it came as no surprise that New Englanders rose to his defense, questioning not only whether Brady was actually involved but also why he was singled out and whether the NFL had a vendetta against him and his team.

Many of those Patriots fans showed their disdain for the League and in favor of their sanctified player, including Mr. Morse, by wearing t-shirts with Brady’s stylized image on them with the words “Free Brady.” The t-shirts were designed and distributed by Barstool Sports and made to mimic the artistic style of Shepard Fairey’s famous Hope image depicting now-President Barack Obama. The t-shirts proved so popular that a competitor came out with its own design. When the competing design (created by I Love Boston Sports) was worn by Massachusetts Governor Charlie Baker while doing the Ice Bucket Challenge, it sparked a social media furor as the competing vendors jockeyed for position (sorry to mix my sports metaphors).

Both Barstool Sports and I Love Boston Sports lay claim to being the originator to the idea for the competing t-shirts and have attempted to bolster their respective claims by citing the date and time of various social media posts featuring the images and the “Free Brady” exhortation. Of course, old school media, including the Boston Globe couldn’t help itself and fueled the controversy by running a series of articles on the designs and the dispute. At the time of writing this article, neither side had initiated any legal action.

Likewise, neither the owners of the copyrights for the underlying Brady photographs nor Mr. Fairey had weighed in on claims they each may have against the t-shirt designers. Nevertheless, the longer debate over DeflateGate (as many are calling the Brady suspension) lasts, the more likely the sales of the two “Free Brady” t-shirts will continue and the higher the potential stakes should anyone decide to sue.

Under U.S. copyright law, there are certain “exclusive rights” of copyright owners. For example, the authors of copyrighted works may prevent other people from copying or distributing their works. Generally speaking, if someone makes a copy of a copyrighted work without the permission of the copyright owner, the making of the unauthorized copy constitutes copyright infringement and there may be significant negative repercussions for the copying party, including substantial monetary damages.

But, what if, as here, the person making the copy transforms the original work into something different, something the law labels a “derivative” work? It’s not uncommon for a writer to incorporate a paragraph of dialogue from a copyrighted book, or an artist to incorporate into a new painting a single figure from someone else’s painting. Under such circumstances, the second work is not an exact duplicate of the original, but rather an independent work that incorporates certain, but not all, aspects of the copyrighted work. The key analysis in such situations involves what is known as “substantial similarity.”

In order for there to be a finding of copyright infringement, second work need only be “substantially similar” to the first. It doesn’t have to be an exact duplicate to be an infringement. However, the second work does have to take enough of the copyrighted work that it can be said that the second work was not “independently created.” Making matters more confusing, the courts have refused to adopt a single, simple test to resolve the issue and have instead relied upon general statements of policy, and sensitivity to the facts of particular cases.

What is clear, however, is that taking even a small portion of a copyrighted work can constitute copyright infringement. Thus, one or more of the creators involved in designing the “Free Brady” t-shirts, including the underlying photographers and Mr. Fairey, may have a valid claim for copyright infringement, but it remains to be seen whether or not the financial stakes are significant enough to pursue legal action.

Why It Matters. If you’re not a New England Patriots fan or a Tom Brady devotee, it’s unlikely any of this matters to you. But, if you’re a Seattle Seahawks fan, the silly obsession may be a bit of a salve, taking the sting out of that Super Bowl-ending interception and the sob-inducing defeat. And, if you’re a southern California NFL fan, all you really care about is when will the Rams return to the Big Game.

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