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Profiteering Or Tribute? Trayvon Martin T-Shirts Raise Moral And Legal Questions

On the east side of Tallahassee Mall, just past the food court, stands a little urban clothing store called Top Fashion. It’s a weekday morning and the mall is almost vacant. Store owner Bonnie Harsanyi mans the register while one of her employees restocks some of the store shelves. Bonnie’s been in business in for about a year.

“It takes a year – just by now people are starting to know me. Got to know this town. You know, try to survive,” Harsanyi said.

After building relationships with her customers they started to ask for a particular type of merchandise.

“Customer come down and request: I’d like to have a – some Trayvon shirts and they want a certain style with the clothes. You have to meet the needs of people in town,” Harsanyi explained.

But, not everybody sees it as simple supply and demand. Phil Agnew, whose group the Dream Defenders occupied the Florida Capitol for a month after George Zimmerman was acquitted of the charges relating to Martin’s shooting death, thinks retail stores selling shirts with the teen’s image are profiting from tragedy.

“I think that if the family has not been consulted and the design and the shirt been approved by the family and the likeness been approved and the revenue for those shirts is not going to the family or the foundation they set up, then its sheer profiteering. It’s capitalism at its worst,” Agnew argued.

Still, patrons may disagree. Harsanyi said the shirts have been popular and shopper Tiffany Brown, who’s a frequent Top Fashion patron, doesn’t understand what the big deal is.

“I mean me personally, I actually feel like it’s – it’s okay because it’s basically showing respect you know? Like – legacy live on. Everybody’s rocking Trayvon Martin shirts,” Brown commented.

But, is selling the shirt legal if the shop doesn’t first get the family’s okay? Tampa Bay Intellectual Property Lawyer David Ellis said it depends.

“Well in Florida there is actually a statute that says that no one can use another person’s name or likeness, or portrait, or photograph for purposes of trade or any commercial or advertising purposes without the consent of the individual,” Ellis answered.

But according to Florida law, unless a person is married or has children the right to their image doesn’t get passed on to anyone.  Ellis explained that’s why retail stores are fully within their right when they reproduce merchandise featuring Martin.

“There would be nothing to prevent them from using his name and likeness for commercial purposes. It doesn’t seem to me that the statute would cover this situation at all because he neither had a widow, nor children, nor had licensed his name or likeness during his lifetime,” Ellis said.

Ellis said the family can’t do anything about the merchandise already sold. But, if the family trademarks his image or proves they own the photographs being used, the family could stop stores from further using their son’s image. The Martin family could not be reached for comment.