A lot of people ask and even more don’t, but one issue on the Phish lots is what IS and IS NOT ok to sell. More so, what is the cause for some lot items to be taken, and others not. This Treatise on Phish Lot is designed to share with you the rationale behind the usage of the word Phish, as well as the usage of the images of band members on your posters, shirts and stickers or whatever it is you make and sell/share in the lots and online.
**Note** This blog post is not meant to be an end all/be all for defense from those who would take away your lot art or other art for that matter. Do not present this blog post as your defense, it is only a guide based upon experiences in the lots and having been on tour for years. The writer of this is not a lawyer, although he did once play one in high school.
The word “Phish”
The word “Phish” is a federally registered trademark that the band holds, and therefore it gives the band the exclusive right to use the word Phish (their trademark) on particular goods and services, including posters, decals, bumper stickers, clothing, and so on. Trademarks are a great asset to a band, big or small. If trademarks are not enforced, then they would cease to exist.
In recent years, fans have taken to selling their photos of the band. Phish does not allow any commercial use of band or band member names, images or likenesses without permission. That includes sale and/or commercial use of photographs.
Band member likenesses
So you are thinking of making a poster, a shirt, or a sticker for sale in the lots or online. And you wonder, “If I draw a picture of Page/Fish/Mike/Trey will I get in trouble for it?”
The answer is Yes, sort of.
OK, look at this shirt
Who are these guys? I dont know, look like four random people to me. The chick on the right looks a little husky though. Second one in from the left is decent. Dude in the hat looks like Waldo, can’t be sure though.
Wait, you say these are Page, Fish, Trey and Mike? Wha? Well, I guess thats possible. But thats the point here: the vagueness of this shirt, the lack of anything that tells you who they are such as their name or facial features – those keep this shirt totally in the black (black is good). This is a creative shirt in that respect, in that it avoids any conflict with Phish’s trademarks and leaves no real aspect of the shirt’s design to complain about.
In terms of likenesses, this has a good deal of gray/grey area. First, if you are selling something or making something that might imply some sort of endorsement by the band member’s likeness you feature, then you are most likely violating that band member’s right to privacy/publicity (That’s based on individual state’s laws, most of which protect reproductions of likenesses.)
Even though you could argue that the likeness of a band member on an original work or a limited edition art-print is OK, the people patrolling the lots are most likely not going to get into a legal debate with you, discuss abstract copyright law, or indulge you in an opportunity to defend yourself. They are not really interested in discussing what is a likeness and what isn’t, and before you know it they will use their power granted by a U.S. Attorney and the U.S. Marshal’s Service. To be blunt – they will tend to grab anything with a band-member’s likeness on it.
Remember Hampton? Wasn’t that fun? Everyone had shirts, posters, stickers, it was a free-for-all!
There was a reason for that: hamptonroads.com/2009/03/judge-phish-can-ban-not-seize-bootleg-merchandise
In every town Phish plays in, a new order of seizure is filed for and (typically) granted to Phish’ management, a deputization of sorts, where they legally can seize your goods, or at least make you run really fast to avoid them. This has been done for years, at least 15 by our count. However, in Hampton, someone dropped the ball, didn’t file the papers right, or didn’t dot an ‘i’ somewhere. That is why we had free reign in Hampton. But it is also why we will probably not have free reign, or anything close to it, ever again. Phish only drops the ball once. Or twice, depending on how you viewed the hiatuses.
But what about artistic ingenuity?
Artistic ingenuity is great and all, and if you paint Trey with a brush, it’s art. But it’s still Trey’s image, and there is a right to privacy inherent, no matter if you are famous or not.
Just remember, it’s all about being creative, but more about being REALLY creative and using other aspects of the band: the songs, the lyrics, the venue they play in, the cities the find themselves in, the overall event, those are legit from our experiences. The more creative you are, the better your lot shirt/poster/sticker will come out! Find other ways to make a poster about Phish, a lot-shirt that doesn’t get you in hot water, or a sticker that doesn’t go to waste because you figured your logic trumps a judge’s order of seizure. Play it smart, be creative, enjoy the lots, and dont patronize the nitrous mafia. They are a leech on Phish Lot.
Look for our next Treatise on Phish Lot: Corporate Logos, sometime in the next couple weeks