First appeared in BOXSCORE
By Aron Solomon
Can you imagine a world where the type of Grizzlies that play in Memphis become less grizzly and a lot more fun? This amazing creator who runs the NBA Paint Twitter account already has.
Uproxx was the first to bring NBA Paint into the broader public consciousness back in 2021. But NBA Paint at least seemed less commercial back then, focusing more on fun takes on player names (I loved this one on one of my favorite role players in the league). The social media phenomenon now has a website where the fantastic NBA Paint creations are sold.
But even as an ardent fan of their work, unless I’m missing something massive, nowhere on the NBA Paint site is there any indication that the use of team names, likenesses, logos – anything, really, is licensed.
So a couple of years ago, I toyed with the idea of opening an Amazon store that would sell sweatshirts with the colors of major colleges with great sports programs, but I wouldn’t mention the names. So imagine a blue and white sweatshirt that would simply say something like “ROAR!” which, obviously, would connote the Nittany Lion of Penn State, on a shirt that had Penn State colors. I wondered whether this would be okay since I wasn’t planning actually to use the lion or the name of the college.
I did my research and talked to a couple of people. The verdict was that if I labored in relative anonymity, I’d be fine. But if what I was selling caught on at all on Amazon, my idea was doomed, as Penn State could obviously make a cogent legal argument that I was ripping them off by trying to be clever, which, of course, always fails. As Rich DiTomaso, a Philadelphia lawyer, points out, “When it comes to sports brands and copyright, any use that falls into the grey area will more than likely go against the creator and for the intellectual property holder,” which I’m convinced would have been my fate.
My research showed me that there are certain limitations to what can be shared, especially when it comes to using logos and brands that are owned by others – in my case, the NCAA and individual schools – in NBA Paint’s case, the NBA and NFL, at least so far. This is particularly true when it comes to the NBA, which has seriously strict rules about the use of its logos and trademarks. Even a parody Twitter account can’t use NBA brands and logos without official permission from the league in the form of a licensing deal.
Trademark law is designed to protect the intellectual property of businesses and individuals, including logos, brands, and other identifying marks. Like many other organizations, the NBA has registered its logos and trademarks with the United States Patent and Trademark Office (USPTO), giving it exclusive rights to use those marks in connection with its products and services. This means that no one else can use the NBA’s logos or trademarks without permission, including parody Twitter accounts and especially websites that sell actual merchandise based on these parody creations.
One of the reasons why the NBA is so protective of its logos and trademarks is that they are seriously valuable assets that help to build and maintain the league’s brand. The NBA’s logos and trademarks are instantly recognizable and are associated with the league’s high-quality products and services. Allowing others to use those marks without permission could dilute their value and damage the league’s reputation. The NBA trademarks are worth, no exaggeration, billions of dollars, and they do not take lightly to IP infringement.
Another reason why the NBA is so protective of its logos and trademarks, as clearly expressed in their terms of service, is that they are often used in connection with merchandise and other products that generate revenue for the league. By allowing others to use its logos and trademarks without permission, the NBA would be giving up control over how those marks are used and potentially losing out on revenue. In other words, if the NBA were to decide today to start their own site where they make fun variations of their own team logos, it’s their right and only their right to do so.
While there are some very limited parody and fair use exceptions to the rule that logos and trademarks cannot be used without permission, these exceptions require careful consideration. Parody, for example, is a form of speech that is protected by the First Amendment, but it must be done in a way that does not confuse consumers or mislead them into thinking that the parody is associated with the original trademark owner, which is the case with NBA Paint. In the case of the NBA, a parody Twitter account that uses the league’s logos and trademarks without permission could be seen as an attempt to mislead consumers and could be subject to legal action.
As Miami sports lawyer Samir Patel points out, “It’s likely that a creator in the position of NBA Paint would get a cease and desist letter before perhaps eventually getting sued. Many of us love their work, but legally this is clearly a derivative work for commercial purposes. The company needs to have the permission of the NBA for team logos and the player’s association to use name, image, and likeness.”
In addition to the legal implications of using NBA logos and trademarks without permission, there are also ethical considerations to take into account. Using someone else’s intellectual property without permission is not only illegal, but it is also unfair and disrespectful. It shows a lack of respect for the hard work and creativity that went into creating those marks and can damage the relationship between the NBA and its fans.
So if they end up getting haled to court, I understand that the defense would be we just make really cute hats with jaguars and Nordic men and animals, but the reality is they don’t. Even on the website, there are sections for the NFL and NBA, which, absent proper licensing procedures, is absolutely going to be seen by any court as being a violation of trademark law.
Personally, I really think I need to buy a couple of caps from NBA Paint in case my prediction here is accurate. What they create is absurdly cool and cute. As recently as today, even an NBA team agreed, commenting very favorably on a fun NBA Paint re-imagining of their logo.
While it’s kind of a shame, even a parody Twitter account can’t use NBA brands and logos without official permission from the league. The NBA’s logos and trademarks are valuable assets that help to build and maintain the league’s brand, and allowing others to use those marks without permission could dilute their value and damage the league’s reputation. Using someone else’s intellectual property without permission is not only illegal, but it is also unfair and disrespectful. It is important to respect the intellectual property of others and to seek permission before using their logos and trademarks, even when the end result is an infinitely cuter deer to fear.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.