Artist files lawsuit against Pelicans organization over Instagram posts involving deflated basketballs
In a legal battle that has gripped the art and sports worlds, visual artist Tyrrell Winston has filed a copyright infringement lawsuit against the New Orleans Pelicans. The lawsuit, known as Winston v. Pelicans, is being presided over by U.S. District Judge Linda V. Parker in a Michigan federal district court.
At the heart of the dispute is the Pelicans' use of deflated basketballs similar to Winston's copyrighted work in Instagram posts. Winston argues that this use violates copyright law, claiming that the Pelicans have not sought his permission and have continued to use his artwork for social media marketing.
The Pelicans might potentially use several common defenses in response to Winston's claims. These could include arguing that their use of deflated basketballs does not constitute copyright infringement because:
- Independent Creation: The Pelicans might claim their basketball arrangement was created independently and is not a copy of Winston’s specific work, despite superficial similarities.
- Lack of Substantial Similarity: They could argue that while deflated basketballs arranged in a grid appear similar, the overall design, artistic expression, and presentation are different enough that it does not infringe Winston’s copyright.
- Fair Use Defense: The team might assert fair use, potentially claiming their photos are for promotional purposes, commentary, or parody, although this defense is typically weak if the use is commercial and directly competes with the original artwork's market.
- Functionality and Scene a Faire: Since deflated basketballs arranged on a wall could be considered a functional or standard artistic motif (scene a faire), they might argue that the concept itself is not protected, only the specific expression by Winston is.
- License or Permission: The Pelicans could assert they had a license or permission (explicit or implied) to use the basketball arrangement, although this seems unlikely given Winston’s cease-and-desist letter was reportedly ignored.
- No Copyright Validity or Registration Challenge: They might challenge the validity of Winston’s copyright registration or claim their use predates the registration date or that the copyright does not cover the specific literal or visual elements used.
However, given the lawsuit accuses the Pelicans of “willful” and “identical” copying of Winston’s registered works Manhattanhenge and R.O.I., combined with Winston’s claim of ignoring a cease-and-desist letter, the Pelicans may face challenges to these defenses.
Winston, whose work has been exhibited in major galleries and museums worldwide, including New York, Los Angeles, Detroit, Paris, Tokyo, Stockholm, Brussels, Hong Kong, Seoul, Athens, has licensed his designs to major brands such as Nike and Adidas. Retired San Antonio Spurs star Tony Parker is an enthusiastic fan of Winston's work and has spoken about its profound impact on him.
In addition to seeking monetary compensation, Winston is also seeking an injunction to block the Pelicans from publishing more infringing posts. It's unclear whether Winston is open to licensing his artwork and, if so, how much he demands.
This case is separate from the NCAA's defeat of Terrelle Pryor's lawsuit over lost NIL opportunities.
[1] Copyright Law Basics: Fair Use | U.S. Copyright Office (loc.gov) [2] Winston v. Pelicans: A Copyright Infringement Lawsuit Over Deflated Basketballs | The Art Law Firm (theartlawfirm.com)
In the context of sports and art, Tyrrell Winston, renowned visual artist and collaborator with major brands like Nike and Adidas, has accused the New Orleans Pelicans of copyright infringement for their use of basketballs resembling his Instagram posts in their social media marketing. If the Pelicans pursue the fair use defense, they might argue that their use of deflated basketballs is for promotional purposes or parody, but this argument could face challenges due to the alleged willful and identical copying of Winston's registered works and the ignoring of a cease-and-desist letter. Furthermore, in the world of basketball and the NBA, debates over the legal use of creative works continue to emerge, often requiring careful analysis and interpretation.
