This would be in Maryland. And it is not a public pool.
The suggestion that painting one image of the NFL logo on the bottom of a private pool is an actionable infringement of the copyright in the logo ignores the fact that the law disregards de minimus wrongful conduct. I would appreciate citation to any case in which ONE reproduction of a work was made for private, personal use and the infringer was held liable.
As for trademark law, the "use" of the allegedly infringed mark MUST be a use in commerce. Absent commerce, there is nothing wrongful about reproducing someone else's trademark. The child who draws the McDonald's arches and puts the picture on the family refrigerator is NOT an infringer. Nor is the person who paints the NFL logo on the bottom of his or her pool.
The NFL is a notoriously active trademark enforcer, and even if this is fair use, or even if the use is not a "trademark use" you are still going to have issues with the NFL - no one has mentioned Section 1125 of title 15, but that is the area where you may have an issue - because by doing this for him, it may appear that you are affiliated with or authorized by the NFL to perform such services. Sometimes a disclaimer works; but I have dealt with the NFL before, as well as Ford, and Honda, in similar cases, and basically, they will make your life miserable, and in most cases, it is best not to do this.
Note, there are cases that support this activity (for example, the Hall of Fame case where a photographer took a picture of the Hall of Fame - which is trademarked, and printed it on shirts, and was sued, and hundreds of thousands of dollars in fees later, won). However, in the last research we did on a somewhat similar matter that I am not permitted to discuss due to client confidences, our research indicated that applying logos to products is a an actionable claim by the trademark holder under 1125.
- mike. You may not rely on this message. This is not legal advice it is information. Please contact a lawyer and obtain direct advice.
You painting of the NFL logo in exchange for ANY consideration -- money, beer, the promise of future work, etc. -- would be unlawful.
The reason is that your performance of that work is a "service" done in commerce. It is not relevant what your customer does with your reproduction of the logo -- the infringement is YOUR conduct.
You may, however, reproduce the NFL logo for free. In that situation the logo is not part of "commerce." Your reproduction, if not a service done in commerce, is legally analogous to a child drawing the NFL logo to put on his or her family's refrigerator. Neither reproduction is an "infringement."
It is very often forgotten by attorneys, and unknown to lay folks, that there's nothing inherently protectable about the stuff that's used to designate the source of a product or service -- that is, "trademarks." What trademark law protects is the association that's created between that stuff used a trademark and consumers' commercial expectations. Absent a commercial transaction, it is [with limited exceptions] lawful to reproduce the stuff being used as a trademark. The relevant law is here: http://j.mp/9lZikV and http://j.mp/d90fOZ .
The answers thusfar focus on trademark rights. A "logo" or drawing may also be copyrighted if it is fixed in a tangible medium of expression and could be considered an original work. If the logo or drawing has been copyrighted, making a copy can constitute copyright infringement (regardless if tied to consumer expectations).
There is another issue--however. Consistent with first amendment principles, the "fair use" doctrine allows use of otherwise copyrighted or trademarked material for purposes of education, political commentary, parody, satire, journalism, etc. A good argument can be made that if a private person decides to make a commentary on athletics and/or social values by placing an NFL logo on the bottom his his private swimming pool, this use of the log constitutes "fair use", since its purpose is expressing a point of view rather than commercial exploitation.
I have to disagree. Using the NFL logo, which is trademarked and probably copyrighted as well, is a violation of the rights of the NFL. I do not see how painting it on the bottom of the pool can be considered fair use. Furthermore, regardless of whether you get paid for the work, you are using a famous mark that may affect the value of the mark.
[This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]
Mitchell P. Goldstein
Richmond, VA 23230
It;s trademark infringement whether you get paid or not, but as a practical matter, since this use is pribate, your chances of getting caught by the rightsholder are very close to 0.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
My colleague is correct that the use of the logo at the bottom of the swimming pool MAY be viewed as "fair use." However, fair use is a murky area of the law and not to be counted on except in very specific circumstances. The use at the bottom of the swimming pool may NOT be considered fair use, and, in fact, given that the logo is "famous," the use may subject you and the pool owner to extraordinary sanctions (i.e., be very, very expensive).
I also would not rely heavily on the idea that the chance of discovery is close to zero. If the pool is an outdoor pool, there are many ways for the trademark holder to discover the use of their logo, ranging from a report to the NFL of the use by an offended fan to satellite surveillance discovering it.
THE INFORMATION PRESENTED IN THIS POSTING IS GENERAL IN NATURE, AND IS NOT INTENDED AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THIS OFFICE AND ANY READER. FOR LEGAL ADVICE CONCERNING YOUR SITUATION, CONSULT YOUR ATTORNEY.
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