Top Trumps filed suit against Richard Wyrgatsch, II, known as “OG SLICK,” seeking a declaration of noninfringement and/or fair use of OG Slick’s copyright in a mural. Top Trumps makes “city edition” Monopoly games under license from Hasbro, where the locations on the game board are landmarks from the city for which the game is made. Top Trumps made a Worcester edition that included a photograph of Worcester Palladium, a theater in the city. This photo was included as a part of a grouping of properties representing public art works in the city, as it included a mural painted by OG Slick as part of a POW!WOW! 2018 Worcester Festival. The mural was a take on the classic yellow “Smiley Face,” which had originally been created by Worcester native Harvey Ball in 1963. Ball never applied for a copyright registration, making the Smiley Face free for Slick to use in his mural.
Slick contacted Top Trump, asserting that the use of the photograph was willful copyright and trademark infringement (the latter based on the inclusion of the term “Slick” in connection with the photograph) and violated Slick’s right of publicity and asserted that Slick was entitled to a six-figure license fee for commercial use of the image of the mural plus the entirety of Top Trump’s profits for sales of the game. When negotiations failed, Top Trump filed this action.
Top Trump says that its use of the photograph constitutes a transformative use of the mural. The POW!WOW! festival had murals painted on building walls in Worcester for the avowed purpose of illustrating that art, specifically urban street art and graffiti, is ephemeral and does not last forever, and Slick’s style is known to be satirical and subversive – the mural in question has cartoon arms holding spray cans such that the mural appears to be painting itself. The use in the game, on the contrary, is to allow purchasers to have lasting memories and ingoing access to images of iconic locations in Worcester and to serve as a chronicle of Worcester as it stood in 2021. As such, according to Top Trump, the game cannot be perceived as communicating the message of the fleeting nature of art.
Top Trump further says that the game is not a substitute for the mural, and does not usurp the market for the mural as it does not fall within the types of things that Slick actually sells or licenses, such as streetwear. In addition, Top Trump points to the provisions of the Architectural Works Copyright Protection Act, which allows for copyrighted architectural structures to be photographed if they are visible from a publicly accessible spot. As the mural is located on the wall of the theater, allowing copyright protection on photographs of the mural would effectively nullify the ability of the public to photograph the theater itself in contravention to this provision.
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