Merchandise sales are the manna of the independent music world. With no disrespect to the musical efforts of your favorite artist, you can boil them down to glorified T-shirt salespeople in the way the lion’s share of their profits come from the merch table. It’s what puts gas in their tank and food on their table, and allows them to make a respectable living.
That is why it is so treasonous that counterfeit merch has become such a hot business. Now virtually anyone can sell online via 3rd-party platforms like Teespring, Viral Style, Lovely Shirt, plus dozens of others and not have to pay any overhead for product or pressing, not have to verify their identity, and can sell oodles of merch in short pressings while using Facebook, Amazon, and other platforms to promote it. And they do it all at the expense of the artists and bands whose hard work made their merch something the public would desire to purchase in the first place, and is emblazoned with their name and/or likeness. And before anyone can start asking questions or contact either the 3rd party platform or Facebook to report the illegal sales, the merch sale ends, aided by the timed format these 3rd party merch sellers use to entice consumers to impulse buy before the sale ends.
Counterfeiters have become especially brazen lately, exploiting the fact that many independent and traditional country artists have rabid fans bases. Just in the last couple of weeks, Whitey Morgan and Wheeler Walker Jr. have been the victims of counterfeiters.
“Don’t buy sh#t like this,” Whitey’s peeps said Thursday evening (12-22) accompanied by a picture of a T-shirt seller called “Tshirt Amazing” peddling unauthorized Whitey Morgan merch. “Facebook will censor, delete, and supress opinions they don’t agree with, then take money to advertise fake ripoff unauthorized merch. Buy merch from the artist Whitey Morgan and the 78’s, not ripoff Facebook ads.”
On December 12th, foul-mouthed country artist Wheeler Walker Jr. was alerted to illegal merch being sold on Amazon and lashed out on Twitter. “Amazon is selling unoffiicial, illegally made Wheeler merch,” he said, “EVERYONE NEEDS TO STOP FUCKING WITH WHEELER. THIS AGGRESION WILL NOT STAND.”
Earlier this year, Lyle Lovett also let it be know that whomever was selling “Lyle Lovett for President” T-shirts was unauthorized to do so, and he wasn’t seeing any of the money in sales. The fact that illegal, counterfeit T-shirt salespeople aren’t just targeting big mainstream stars, but independent artists with relatively small fan bases shows just how lucrative these operations must be, and how deep and widespread the problem has become.
Heretofore the favorite target for counterfeiters in country music has been country music legends. Counterfeiters set up Facebook groups which can target the news feeds of country music lovers via keywords and demographics, and get ads for their short-run T-shirt sales directly to the people they will appeal to the most. Many of the groups are set up using the names of the country legends they look to exploit. Country fans join the groups thinking they’ll receive news about the artist, and instead get bombarded with ads. But you don’t have to be part of the group to see the ads. They can target anyone who regularly talks about the artist or country music in general through Facebook’s news feed algorithm.
Saving Country Music has been tracking this illegal T-shirt activity throughout 2016. As was explained when exposing the Facebook group We Hate Pop Country for making illegal T Shirt sales, right of privacy laws protect individuals, living or deceased, from people making money off of their name or likeness.
As Chron explains about using celebrity images on T-shirts:
Celebrities who claim their right of privacy can sue to prevent businesses from printing their image on T-shirts without permission. Businesses that legally print celebrity images on promotional items usually have contracts that outline the parameters for using those images, along with any compensation the celebrity is entitled to receive. The right of publicity also limits the use of celebrity images on T-shirts. This right recognizes people’s economic value in relation to their work and creativity. Celebrities have the right to exploit the value of their likeness as they see fit, so the unauthorized use of a celebrity’s image violates his right of publicity. Celebrities who sue companies for using their image without authorization can prevail by proving that their image has commercial value.
These rights also extend to deceased individuals, with the rights being retained by the estates.
Printing images of deceased celebrities on T-shirts without permission may be prohibited if the right of publicity continues following a celebrity’s death. Tennessee, for example, recognizes that celebrities can pass their right of publicity to their surviving relatives. Tennessee was singer Elvis Presley’s home … relatives and others who handle Presley’s estate have control over merchandise bearing his name and image. In California, people handling Marilyn Monroe’s estate acquired the right to use her name and image on merchandise by extending the right of publicity after her death.
Of course that hasn’t stopped sellers like Teespring from selling the illegal merch, or Facebook from advertising it. Since so much money is being made off of these spurious sales, there seems to be no incentive by Facebook and the 3rd party merch formats to shut these operations down. Saving Country Music has reached out to both Teespring and Facebook numerous times for comment or clarification on their policies with no direct response. However Teespring states on their website:
Right of publicity is the right of famous people to control the commercial use of their name or likeness. So Taylor Swift has the right to decide whether her name or face will appear in a product advertisement. Right of publicity is really a subset of the larger right of privacy that applies to all people. In the context of marketing and merchandise, that means each person is entitled to control the use of their name and image in a commercial context. In keeping with right of publicity and privacy laws, Teespring will not be able to print shirts that include the name or likeness of any individual, including celebrities, unless we are instructed otherwise by the individual or their agent.
However these policies by 3rd party merch formats only seem to be a way to alleviate any potential legal burden on themselves and put it on the individual sellers. When contacted to take down the illegal sales, action is rarely taken before the damage is done, and the sales have ended. Many of these merch sales are handled by viral farms using aliases, so no recourse can be taken by the affected parties.
Until 3rd party sellers such as Teespring, Viral Style, Lovely Shirt, and advertisers such as Facebook make effort to shut down these illegal sales, it is up to consumers to starve these sellers by not buying from them. The rule of thumb is simple: Only buy merch directly from the artist or the independent record label of the artist, or an authorized 3rd party seller linked to from the artist’s website, or their official social network properties (with the blue checkmark). Anything else is most likely counterfeit, and the artist won’t receive a dime. In fact it will likely cost them money due to lost sales of their own merch.
After the death of Merle Haggard in April, multiple groups were set up on Facebook to exploit his death via unauthorized merch. The Merle Haggard estate, nor the original artists for the photos used on some of the shirts were compensated, while well-meaning Merle Haggard fans purchased shirts to remember the legend.
Willie Nelson is also a regular target of counterfeiters. Here is a look at some of the listings on 3rd party T-Shirt selling websites using Willie Nelson’s name and likeness without permission. Notice how the listings have time limits. This is used by viral T-shirt sites to stimulate impulse buys, and allows the merch sale to end before too much suspicion can be aroused. One says 1,200 T-shirts have been sold.