It would have the image of a nintendo character called Captain Falcon and the print in the middle would say "Name of band" will Falcon Punch you to sleep!
Would this be illegal?
thank you! =)
Where you intend to profit from the sale of an item including a protected character, you need a license. You need to contact the license holder and negotiate terms of use of that license.
I truly wish you the best.
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This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies. In the event that you have follow up questions, please post them directly on this site. This does not create an attorney-client relationship and the attorney does not read unsolicited emails. Thank You.
Yes, this use would violate Ninentendo's rights. If you used a character and an image owned by someone else to promote your band, and didn't get a license from Ninendo (and I doubt they'd want to grant you one and have their character from their game appearing to endorse your band), they'd sue you for unfair competition for misappropriating their character, and oerhaps also their copyright if you lift an image that they've copyrighted.
The fact that you only plan to sell a limited number of t-shirts might limit your damages but it wouldn't change your liability.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
I agree with the thoughts of the two attorneys who answered proir in that this is a clear cut infringement of Ninento's rights. They likely have either/both a copyright and a trademark in the image. Don't let the fact that you're making very little profit or only intend to sell a few justify your actions - copyright infringement carries with it some very significant statutory damages, i.e., the infringed copyright owner does not have to prove actual damages but may elect to receive statutory damages, which can be as much as $150,000 per occurrence for wilful infringement (i.e., you knew it was their property and that you should ask permission).
As always, this answer is not intended as a complete analysis of the facts and issue and should not be relied upon as a legal conclusion.
