The answer to your question depends on certain variable elements regarding the item depicted. For the most part courts rely heavily on Rogers v. Grimaldi -- which is focused on publicity rights, but has a Lanham Act (copyright law) component as well. The court ruled that the First Amendment issue trumps all, and the "likelihood of confusion" here is minimal as well, but takes a back seat to the First Amendment concerns:
In this case, we readily conclude that Moore’s paintings, prints, and calendars are protected under the Rogers test. The depiction of the University’s uniforms in the content of these items is artistically relevant to the expressive underlying works because the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history. Also there is no evidence that Moore ever marketed an unlicensed item as “endorsed” or “sponsored” by the University, or otherwise explicitly stated that such items were affiliated with the University. Moore’s paintings, prints, and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection. The extent of his use of the University’s trademarks is their mere inclusion (their necessary inclusion) in the body of the image which Moore creates to memorialize and enhance a particular play or event in the University’s football history. Even if “some members of the public would draw the incorrect inference that [the University] had some involvement with [Moore’s paintings, prints, and calendars,] . . . that risk of misunderstanding, not engendered by any overt [or in this case even implicit] claim . . . is so outweighed by the interest in artistic expression as to preclude” any violation of the Lanham Act. Rogers, 875 F.2d at 1001.
I hope this helps you with some of the issues, legal and artistic. Feel free to contact us for further information. 203.870.6700
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