Can Rolling Stone Sell T-Shirts Of Its Covers? It's Not That Simple, Apparently...

from the ah,-intellectual-property dept

Tue, Dec 22nd 2009 7:20am — Mike Masnick

Well, here's an interesting lawsuit. Apparently, Rolling Stone magazine decided it wanted to try selling t-shirts of some of its covers. Considering the market for t-shirts, that might not be a bad idea (especially when compared to the market for magazines these days). Obviously, the magazine and its publisher Wenner Media own the copyright on their own covers, so there shouldn't be any problem, right? Not so fast. Since the covers usually include musicians, and those musicians have vast merchandising businesses themselves, some of the companies who handle the merchandising for some top artists have sued, claiming that they have exclusive licensing deals to sell products with those musicians. Rolling Stone is arguing both that it has a First Amendment right to do this, and a fair use defense to any intellectual property claim. I'm reminded of a recent case involving magazine covers, where the use of those magazine covers in a book (by someone else) was deemed fair use, though the details are obviously quite different. Still, it probably won't surprise many people that I tend to think Rolling Stone should prevail here. The key aspect of what they're selling is that the designs are Rolling Stone covers -- not specifically which band is on the cover.

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Filed Under: copyright, magazine covers, rolling stone, t-shirts

25 Comments

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aguywhoneedstenbucks (profile), 22 Dec 2009 @ 6:49am

Design your own cover shirts
Maybe they should let me put myself/my band/my cat (even though I don't have a cat) on the cover of the Rolling Stone. That way there would be no infringing on whatever merchandising rights are out there and I could buy 5 copies for my mother.
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Hulser (profile), 22 Dec 2009 @ 7:31am

Re: Design your own cover shirts
Maybe they should let me put myself/my band/my cat (even though I don't have a cat) on the cover of the Rolling Stone. That way there would be no infringing on whatever merchandising rights are out there and I could buy 5 copies for my mother.

I think that the difference is that these artists agreed to be (and were perhaps even paid to be) on the cover of the Rolling Stone. Creating t-shirts from the covers may be extending the use of the artist's image beyond what was originally expected, but at least there was some kind of agreement in place about the user of the image.

(Nice Dr. Hook reference, BTW.)
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The Anti-Mike, 22 Dec 2009 @ 7:35am

please release me, let me go....
It would depend in part on the releases that were signed for the musician's images as used on the covers to start with. A model release will often detail they type of uses that may be made of with an image (example: print only, print only for Rolling Stone magazine, print only for Rolling Stone magazine only in 2009, no resale, no wire story, no use for promotion of the magazine beyond the issue, etc). Some artists and management are very picky and very careful about such things, others are not.

Part of the legal question here would be "why are people buying the shirts?" If they are buying them for the celeb rather than for Rolling Stone, then the celebs would obviously have some weight in saying it's their likeness selling the shirts. Obviously, if they have licensed those rights to someone else, it would be a very interesting legal debate as two sides might both think they have contractual rights.

I suspect this will end up as a split case - those artists with better / tighter model releases from the original photo shoots won't be on t-shirts, and those who didn't restrict the usage will find themselves as t-shirt decorations.
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Joe (profile), 22 Dec 2009 @ 7:49am

Re: please release me, let me go....
I've gotta agree here. It really all depends on the contract. Rolling Stone should have said something along the lines of "We can use the images any way we see fit" and if artists didn't agree to that, then they didn't make the cover. If the original contracts had limitations about how the images could be used, then those limitations must be honored. The same would go for any royalties resulting from the shirt sales, assuming such things were covered in the contract.

Obviously if the contracts said nothing of the use of the images, then there's no grounds for a lawsuit and it should be thrown out. The reason for buying the shirts doesn't weigh in at all; Rolling Stone (most likely) paid for the images, so if there's not a contract saying otherwise, the images belong to Rolling Stone and can be used as they see fit.
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Whoaaaa Dooode, 22 Dec 2009 @ 7:52am

Exxxcellent
It would be interesting to have a Rolling Stone cover with the Rolling Stones on it on a T-Shirt worn by a stoner
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Ray, 22 Dec 2009 @ 7:52am

My likeness
Although I believe that copyright is WAY OVERUSED, in this case, I would NOT want my image (or artistry, writing, etc) used to make money for someone else unless I had EXPRESSLY authorized them to do so.
As in this comment, the very fact of my posting my comments means that I WANT them to be published in this venue. NOT in some other venue that may not compliment my image.
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..., 22 Dec 2009 @ 7:54am

Re: My likeness
You mean that I am not allowed to copy your comment and post it elsewhere?
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aguywhoneedstenbucks (profile), 22 Dec 2009 @ 8:04am

Re: Re: Design your own cover shirts
I have a feeling you're 100% correct on that and I really don't have a beef with it. Mostly I just wanted to work it so that I could get my picture on the cover of the Rolling Stone (I heard the song on the way to work this morning and felt the need to work it in somehow).
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Anonymous Coward, 22 Dec 2009 @ 8:43am

"My likeness
by Ray
Although I believe that copyright is WAY OVERUSED, in this case, I would NOT want my image (or artistry, writing, etc) used to make money for someone else unless I had EXPRESSLY authorized them to do so.
As in this comment, the very fact of my posting my comments means that I WANT them to be published in this venue. NOT in some other venue that may not compliment my image."

Ahh, my first infringement of the day completed. I feel better. Now I can move on with the rest of my life.
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Michael, 22 Dec 2009 @ 8:59am

Re: Re: please release me, let me go....
Look a the lawsuit though. The merchandising companies for these artists are suing Rolling Stone. If there was a contract dispute between the artists and Rolling Stone, that would make sense. If there was a contract dispute between the merchandising companies and the artists, that would even (possibly) make some sense. However, this is a dispute between two companies that have no contract with each other.

So, it comes down to whether or not a merchandising company can claim some kind of ownership of any image of the band being placed on a T-Shirt. That does not seem easy to argue.
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Tom The Toe, 22 Dec 2009 @ 9:00am

Got My Shirt
For a short time the shirts were available at Wal-Mart for $10. Got the Johnny Cash shirt, (very cool).
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Mojo Bone, 22 Dec 2009 @ 9:12am

Please Release Me, etc.
I'm fairly certain that artist popularity would drive sales; it's a fair bet naked John & Yoko or hot sexy and dead Jim Morrison would outsell RHCP or Alanis Morisette, so Rolling Stone should cut the artists in for a piece. RS may have played a key role in making them stars in the first place, but once they're established, they have to be dealt with a bit differently than the photographers that took the pics.
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Anonymous Coward, 22 Dec 2009 @ 9:24am

Re: Please Release Me, etc.
"..so Rolling Stone should cut the artists in for a piece"

Why?
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Gordon, 22 Dec 2009 @ 9:56am

While I agree with The Anti-Mike to a certain degree about the contract thing, a little bit has to be said about the whole "Cover of Rolling Stone" cultural bit.
The Rolling Stone covers have almost become part of the culture of the music industry in itself never mind the culture of the country. I'm sure we all remember the B+W Janet Jackson cover. Hell I had that one hung on my wall in a frame for a long time.

Discuss......
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The Anti-Mike, 22 Dec 2009 @ 10:50am

Re: Re: Re: please release me, let me go....
If the merchandising companies are the only ones permitted by contract to distribute and sell "star" gear, they are in a fairly powerful position. The real exceptions I expect would be if Rolling Stone has a release that grants them all uses, and especially if that model release came before the merchandising agreements.

Rolling Stone may argue some sort of fair use, but I think in the end they may be forced to re-license for distribution on a different medium (shirts, not magazines).
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Bloody Pirates !, 22 Dec 2009 @ 11:35am

Re:
Gordon -> "I had that one hung on my wall in a frame for a long time."

Did you pay for and obtain the "hang on the wall" license?

I assume you did not, and therefore you are a thieving pirate terrorist.
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slander (profile), 22 Dec 2009 @ 11:48am

Re: Re: Design your own cover shirts

I think that the difference is that these artists agreed to be (and were perhaps even paid to be) on the cover of the Rolling Stone.
Britney Spears, rap stars, U2, and boy-bands have been on the cover as well. You might want to re-think that blanket artist term...
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slander (profile), 22 Dec 2009 @ 11:52am

Re:
You forgot Step 4.
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Anonymous Coward, 22 Dec 2009 @ 2:10pm

I can promise you that the releases signed at the time that photographs were taken for the cover only allowed for limited likeness rights such as publication only. If they want to start selling shirts with people's likeness on them, they'll have to secure further rights.
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nasch (profile), 22 Dec 2009 @ 4:17pm

Re: Re: Re: Re: please release me, let me go....
If the merchandising companies are the only ones permitted by contract to distribute and sell "star" gear, they are in a fairly powerful position.

By contract with whom? Are you suggesting Rolling Stone signed contracts with various merchandising companies? That doesn't seem likely, but maybe someone with experience in merchandising or magazine publishing can offer an educated guess.
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Joe (profile), 22 Dec 2009 @ 5:46pm

Re: Re: Re: please release me, let me go....
I don't really know much about contract law, but I assume if Rolling Stone made their contract with the artist before they signed with the merchandising company, then that contract would take precedence. I can see the merchandising company taking it up with the artist if they signed the contract without their consent I guess, but yeah, I guess it doesn't make a lot of point for them suing Rolling Stone; they don't seem to be involved really. I simply assumed the merchandising companies filed the suit on behalf of the artists. Perhaps I was jumping to a poor conclusion there.
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The Anti-Mike, 22 Dec 2009 @ 6:39pm

Re: Re: Re: Re: Re: please release me, let me go....
Nasch, when Rolling Stone ran the covers, they didn't do it as merchadising, they did it as a magazine cover. So there would be no issue about merchandising at that point. However. to take those covered and reprint them on t-shirts and sell them becomes merchandising.

Basically, Rolling Stone, by trying to sell t-shirt (aka, merchandise) with art images on them potentially is in violation of exclusive agreements that the artist may have signed. It doesn't apply to magazine covers, as they are not "merchandise", at least not in the sense of a t-shirt, a hat, or similar.
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nasch (profile), 23 Dec 2009 @ 8:06am

Re: Re: Re: Re: Re: Re: please release me, let me go....
Basically, Rolling Stone, by trying to sell t-shirt (aka, merchandise) with art images on them potentially is in violation of exclusive agreements that the artist may have signed.

It doesn't matter (for this suit) what the artist signed, it's the merchandisers who are suing Rolling Stone. I don't think they're going to get very far accusing Rolling Stone of violating a contract between Acme Merchandising Inc. and Britney Spears. They aren't a party to the contract, and so cannot breach it. They really need to be suing the artists. Then the artists, if their contract with R.S. permits, can sue the magazine.
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DV Henkel-Wallace (profile), 23 Dec 2009 @ 10:27am

Re: Design your own cover shirts
Excellent pop reference, Dr. Hook -- shame nobody else seems to have gotten it!
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Dementia (profile), 25 Dec 2009 @ 2:40pm

And here I thought artists were lining up and wanting to be featured on the cover of Rolling Stone. It seems to me it would be more free promotion, but what do I do know?
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