I am retired, and I have been a pretty good amateur photographer for some time. My grandson is playing on a little league baseball team. I thought that I could make a little income by taking pictures of the players on the team and making a fake magazine cover with their picture on it. Or perhaps make the kids their own baseball card. These pictures would likely contain the logo of their team, which in all likelihood is a registered trademark. Would I run into trouble if I were to charge a nominal fee to parents wanting copies of their budding big leaguer.
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As for any other question touching on legal matters, the only advice I offer is to seek the opinion of an attorney, and don't rely on legal advice from strangers on the internet.
Assuming you're in the U.S., I think you'd probably be fine. You didn't violate the trademark owner's rights by appropriating their mark and using it for the team's logo and uniforms. Neither did the local paper's sports photographer violate the trademark by taking pictures of the players during the game and selling them to the paper (if the photographer was a freelancer), nor did the paper violate the trademark by publishing the game photos and selling their issues to the public.
If you were a portrait photographer selling individual and class portraits for school kids, you wouldn't be violating any trademark rights if one or more of the students wore officially licensed NFL shirts, or even if they wore knock-off "counterfeit" shirts.
scottbb
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Would that hold true if the logo is added to the final product (baseball cards, fake magazine covers, etc.) via a graphic design superimposed over the photos? That seems to be at least part of what the OP is asking. Not to mention that the fake magazine would likely be an infringement risk in its own right if it resembles an actual magazine whose owner has the logo/cover design trademarked. – Michael C Apr 21 '17 at 23:15
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First, I really doubt a local kids team logo is trademarked (unless they are themselves using it without permission). But if it is, I really doubt anyone would pursue you for using it in this way. However, I also think you ARE infringing if you did, and COULD be pursued because of it absent a license. But there's a huge difference in "are you in violation" and "will anyone pursue you". – Linwood Apr 22 '17 at 01:56
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@MichaelClark Interesting question. My presumption was that the OP's situation was limited to taking a picture of the kids in their uniforms, and the uniforms contained a co-opted logo. If the OP were to graphically reproduce the logo as an additional artistic element (such as printing the "official" team logo on the back with the player's or team's stats), then that would probably be in murky waters legally. That would probably be infringement of trade dress, in my completely non-legal opinion. As far as "simulating" or strong resemblance of a publishing trademark, such as Topps cards or ... – scottbb Apr 22 '17 at 02:11
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@MichaelClark ... Sports Illustrated magazine, that would probably entirely depend upon the degree of similarity and co-option of the trade logos. As my business law professor told the class: think of the law like a flowing river. It meanders and shifts. You could build right on the bank of the river, thinking you're safe on your side of it. But after some time and some flooding, your house might wind up being right in the middle of it, or even on the other bank. It's much more prudent to build far enough away not to be swept up in the changing banks. – scottbb Apr 22 '17 at 02:14
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@Linwood The way I read the OP's question, it's not that the kid's team logo is trademarked by the team, it's that they are using a trademarked logo (college or pro, likely) as their own. I agree, there's a HUGE gulf between "in violation" and "probability of being pursued", which is part of my thinking. But merely taking photographic pictures of people wearing ANY logo and selling those pictures, as far as my understanding of US trademarks and copyright law, in no way endangers the photographer. – scottbb Apr 22 '17 at 02:19
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@Linwood Having said that, it is possible to be sued or pursued for anything. Whether or not the case has merit is a secondary point, if the pursuer has deep enough pockets and sufficient motivation to sue just to silence the defendant. In this particular case, the odds against that happening are astronomical. But as you noted, there are huge differences between what's possible, or likely, or according-to-Hoyle legal. – scottbb Apr 22 '17 at 02:23
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There are some youth leagues that use trademarked logos of professional teams with the permission of the owners of the trademarks. – Michael C Apr 22 '17 at 04:25
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@scotbb I am not an attorney, but my understanding is that taking a photo of someone wearing trademarked gear becomes infringing when the association becomes strong, i.e. if it is incidental, someone walking on a street - not. If it is a bunch of kids playing baseball, wearing the trademark, and standing in front of a banner with it, AND then that photo is used to promote the team (and thus that association) - probably. Now if the team is licensed, that's different. But again, getting pursued is different from infringing (in both directions). – Linwood Apr 22 '17 at 12:22
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@Linwood I am also not an attorney (I have to apologize, I didn't mean to imply I was one by casually dropping "Business Law class" in my response to Michael; it was just a class in my started-but-not-finished MBA program). But my understanding of the issue is that a sports photographer, class photos photographer, team pictures, etc., is essentially just documenting the subjects, even if the photos are made for sale. However, if a photographer were to pose or dress the subject with an unlicensed mark, then the photographer is the artist possibly infringing on the mark. – scottbb Apr 23 '17 at 00:55
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1I could easily be wrong about my answer; I'm not an attorney. That's generally why I prefer that these questions are asked in Law.SE. While it's certainly of interest to photographers, the details, clarifications, and certainly good answers probably can only come from the Law.SE folks. – scottbb Apr 23 '17 at 00:58