Pink floyd

[pw66]

How is it not illegal?

It is not illegal because nobody has any image rights under UK law. If you have a legitimately obtained image, and you are not passing off, then the subject of the picture has no claim.

The Sex Pistols didn't get permission from the Queen to use her picture.

Passing of is very hard to prove. It is a common law 'tort', not statutory legislation, and it relies on three criteria - Goodwill, Misrepresentation and Damage to Goodwill. The plaintif has to prove that he has goodwill and prove that the defendant is misrepresenting the product as being real/official/genuine.
The law is also specific to the case in hand, and relates to the image and product in question. In the OP's case, Gilmour would have to prove that he had goodwill in that particular image ( or one very similar), and that there is likely to be confusion in the eye of the public.

In the Rihanna case I mentioned earlier, Top Shop had obtained an image almost identical to the official one, taken from a closed set. The garment it was used on was almost identical to the licenced one sold by River Island. The judgement was not an affirmation of 'image rights', but a judgement of that particular image and garment misrepresenting itself as genuine under the 'passing off' tort.

[Andrew]

I think that Arsenal case is far removed from a photo of a person. Image rights are more complex but someone using a trademarked logo and selling it as official merchandise has nowhere to hide. You can buy an image of Dr Who actors and put them on a mug as long as you don't reference Dr Who. This is where the grey areas come into play and there is a huge amount of interpretation. The law should be far more clear and simplified.

Simple way forward to be safe is that if you are not 100% certain don't do it. If you do it and are not certain then don't whinge when and if you get in trouble.

[GoonerGary]

My argument isn't with image rights, but for passing off the t shirt as a Gilmour/ Floyd product. As soon as you mention those words in your product title you will run into trouble. You'd find it hard to buy a Dr Who image, use it on mugs without it costing you serious money anyway. Amazon UK have a specific section on image rights in their copyright infringement section. Probably US law, but it will get removed upon request regardless of UK law.

[Andrew]

You can buy an image of Matt Smith or Capaldi (or whoever is Dr Who). Put them alone on merchandise and it is fine as long as you have rights for the image use. Same with a police box artwork that is carefully done so as not to crossover. It is far from straightforward where the line is that cannot be crossed.

[GoonerGary]

Getting that image will be hard though. Done a search for Matt Smith. £500 for editorial use. Use on a commercial product not allowed on Getty. Getting that permission and being able to afford it - virtually zero.

[pw66]

As far as passing off is concerned there is no straightforward line. It relies on the plaintifs ability to prove goodwill and misrepresentation. There is no legal definition of passing off, decisions rely on case law. The law exists to stop misrepresentation, either intentional or, after careful consideration on behalf of the customer, unintentional. Unintentional misrepresentation does not apply to 'a moron in a hurry'. Passing of legislation in no way confers any trademark or monopoly onto the disputed item.

If you legitimately print Matt Smiths photo onto a t-shirt there is little that he can do about it, as he has no image rights, but that image could well protected by the copyright held by the photographer or the BBC, and the copyright holder might believe they also have a case under the passing off laws.
Two very different laws, both of which need to be considered.

[pw66]

Done a search for Matt Smith. £500 for editorial use. Use on a commercial product not allowed on Getty. Getting that permission and being able to afford it - virtually zero.

That will only apply to the specific image that you are buying the rights to use. It doesn't apply to other images you may have, as long as you do not fall foul of the other legislation detailed in this thread.

[paul 44]

If you pass off as official merch on a tshirt and it isn't then I can see a load of problems, thats misrepresentation straight up and fraudulent also which I think is more serious than just putting say Gilmour on a shirt which was my Idea but that obviously has it's problems. As soon as I put Pink floyd in a title on ebay or David Gilmour and sold it as inspired by I trhink it would be taken down as my pic was of Gilmour but in a silhouette style.

I tried it on a Motorhead shirt with the warpig logo on it about a year ago before I knew any better and it got taken down faster than I put it up, got a warning for that one, my thinking at the time was well if somebody else can do it then I can do it to. I didn't list it as official merch either because I think that would have been worse to do and not smart at all.

It's all if's and buts with regards to the law etc, some people get their paypal accounts taken down and paypal will hold funds for 6 months, shop etc out of business which means needing to find other payment methods to work with customers.

[pw66]

David Gilmour has his name registered as a trademark, so even if the image is legitimate, as soon as you use his name to sell it you can be in trouble. Even if the name is not on the product.
You could find yourself with a perfectly good and legal product, but without the ability to advertise it.

[wayupnorth]

I sell pictures through stock sites that are royalty free. This does not mean they are free for publication without payment. I also post pictures on facebook and my websites but these are not public domain in the sense that anyone can just use them for any purpose. If I have used images for a product they are sourced from royalty free sites and I pay accordingly. I would be upset if I found one of my images being used for commercial gain without my knowledge. Why would anyone think that just because an image is online it is fair game. I am happy to tolerate "fair use" but not for profit.

If you want to use an image for profit then why not talk to the copyright holder about a licence. If you can't afford it then move on.

Sorry to be grumpy but having a bad day....