There has been debate about whether a sketch of a photograph of Tayla Harris on t-shirts offered for sale on the League Tees website, infringes the AFL’s copyright in the now famous photograph of the AFLW star.
The AFL has demanded the removal of the t-shirts bearing the sketch from sale. Controversy has arisen, notwithstanding that the proceeds from sales of the t-shirts were being donated to charity. League Tees maintain that the sketch does not infringe the AFL’s copyright, but it has ceased selling the t-shirts because it does not have the “money to defend [its] rights in court”1.
This article from the ABC sets out the allegedly infringing sketch by League Tees and the AFL’s photograph.
From a legal standpoint, the sketch by Mr Costa of League Tees IS most likely an infringement of the AFL’s copyright in the photograph. While the sketch might have taken Mr Costa “8 hours to get right”, it is essentially a reproduction of the AFL’s photograph. There is unlikely to be sufficient independent intellectual effort in the creation of the sketch by League Tees to avoid infringing the AFL’s copyright in the photograph. The situation might be different in the US where there is a ‘fair use defence’ to copyright infringement that allows more scope for transformative works.
Even if the sketch did not infringe the AFL’s copyright, as alleged by the AFL, the design and sale of the t-shirts bearing the sketch is likely to constitute a misleading representation by League Tees as to an affiliation with the AFL. The presence of the disclaimer that League Tees is not affiliated with the AFL does not change this. Australian Courts have found that such disclaimers are ineffective, as they are unlikely to be seen or understood by those consumers who would otherwise be misled or deceived.
Whilst the AFL has the right to control use of its intellectual property and prevent consumers from being misled, from a practical and public relations point of view, the AFL could have approached the issue differently. In circumstances where League Tees states on their website that the proceeds of sale were going to charity, the AFL might have offered League Tees a licence for a nominal fee to sell the t-shirts bearing the sketch, with a condition that the proceeds of sale go to the domestic violence charity nominated by Tayla Harris.