Public Art, Private Rights: The Copyright Question Behind Sunderland’s Away Kit

A dispute between Sunderland AFC and a Liverpool artist has raised a question that will be familiar to brand owners across the sports industry: when does drawing inspiration from a public artwork cross into copyright infringement?

Background

According to reports by the BBC, Andrew Small was commissioned by Sunderland City Council in 2008 to create ‘C’, a six-and-a-half-tonne slab of polished black granite marking the end of the Sea to Sea cycle path in Sunderland. The sculpture frames a view of Roker Lighthouse through a distinctive aperture, carved with curved, faceted shapes. As part of his agreement with the council, Small retained copyright in the work.

When Sunderland’s 2025-26 away kit was released, manufactured by Hummel, Small recognised what he believed to be his sculpture. The kit features a repeating geometric pattern depicting the lighthouse viewed through a circular aperture resembling the sculpture’s form. Small found out not through any formal communication from the club but from his son’s old headmaster, who ran across a pub to show him a photograph on his phone.

Small’s barrister has since reportedly issued a cease-and-desist letter to the club seeking a percentage of commercial sales or damages. Sunderland has denied the claim, stating in correspondence that there is “no copyright in ideas and concepts”. The club has also said the design was inspired by its 1989-91 away kit, worn during the era when Sunderland still played at Roker Park.

Images of both the kit and the sculpture, as reported by the BBC, can be viewed here.

The Legal Questions

Sunderland’s position is that copyright does not protect ideas and concepts. Whilst correct as a general principle, this does not determine the outcome in a case where the question is whether a protected expression has been reproduced. Copyright does not protect a theme or a source of inspiration in the abstract. What it does protect is the specific expression of an idea, including the form, shape, proportions, and visual character of an artistic work.

Small’s argument is that the kit does not merely borrow the idea of a lighthouse framed by an aperture, but reproduces the specific expression of that idea, namely the precise geometric facets, the camera-shutter curvature, and the proportions he carved into the granite. Whether the kit’s pattern replicates those specific aesthetic choices, rather than the general concept of the view, is a central question.

Public Art

UK copyright law contains a specific provision, section 62 of the Copyright, Designs and Patents Act 1988, which permits certain uses of sculptures permanently situated in public places, including making graphic works representing them and issuing copies of such graphic works to the public. On its face, that provision is potentially relevant to this dispute.

It is uncertain how far ‘representing’ extends beyond relatively faithful depictions, and in particular whether it would cover a stylised or abstracted design derived from a sculpture’s features, as opposed to a more direct visual representation. This dispute may yet bring some clarity to where that line sits.

A further consideration is that Small’s agreement with Sunderland City Council, according to the reports from the BBC, expressly retained copyright in his favour and required a separate agreement for any commercial reproduction. Where a contract explicitly addresses the question of permitted use, that may affect the extent to which a statutory exception can be relied upon at all.

The Lesson for Brand Owners

Kits, campaigns, and merchandise that draw on local landmarks, public art, or cultural heritage can be powerful commercial tools. They create a sense of place and identity that resonates with supporters and consumers. The risk arises when the rights position behind those references is assumed rather than checked.

Clearance needs to happen before a design is approved and before production begins. By the time a dispute becomes public, stock has been manufactured, products have been sold, and the options available are considerably more limited than they would have been at the outset.

The reputational dimension should not be underestimated either. A dispute involving public art and community identity can quickly become a story about respect and ownership, as well as legal liability.

Conclusions and Takeaways

It is important to note that this dispute has not yet resulted in formal legal proceedings. What has been reported is a cease-and-desist letter and a denial from the club. How matters develop from here remains to be seen.

Nevertheless, the questions it raises are real and relevant for brand owners. The line between inspiration and infringement is not always where it is assumed to be, and the interaction between public art, statutory exceptions, and contractual rights is an area where assumptions can be costly. Whether or not this dispute ever reaches a courtroom, it is a timely reminder that IP clearance should be built into the design process before a product goes to market, not considered after a dispute has become public.

For brands who seek to draw on existing works, landmarks, or cultural assets in their commercial campaigns, early IP clearance is not optional. If you would like to discuss how to protect your brand and manage IP risk across your campaigns and products, our team at Ionic Legal is ready to assist.