Donny Versus KmartJudge says Barley is “readily identifiable,” and rules in favor of exploited pro skater.By Kevin Wilkins
Wouldn’t it be weird if you were out skating one day and saw somebody wearing a T-shirt with your picture on it? Hell, yeah, it’d be weird. But after you got over that initial wave of surrealism, what would be going through your head? When did this happen? What the heck? Why am I on a T-shirt? Where’d they get my picture? Who am I?In this case, so to speak, the answer to the last question is Donny Barley. About three years ago, his likeness was squeegeed onto a cotton-blend overgarment without his permission and sold to the masses at Kmart—home of the blue-light special. He didn’t really like that too much and decided to stand up for himself, as well as help to protect the image of skateboarding and other skaters in the process.
You don’t really seem like the kind of guy who would just fly off the handle and sue somebody.
Laughs No. I talked to some friends and some other people who’ve experienced things like this—people who wish they’d taken action. I got some advice and was referred to a lawyer. I discovered that nobody has the right to use me as their slogan guy, you know?
Tell me about the first time you saw the Kmart shirt with your picture on it.
It was in Atlanta in early ’98. I’d just saved up, gotten a brand-new car, and organized this little trip down to Florida. I picked up Kerry Getz, Mike Maldonado, and Bam Margera. We were in Atlanta doing a demo, and Maldonado came up and told me he saw this shirt. I was like, “What?”
What did it say on the shirt?
It said “Rough Draft,” or something. “Skateboarding is not a crime.”
Were you more bummed on the cheesiness of the shirt, the money someone was making off your image, or the money someone was making off skateboarding in general?
I thought it was lame and knew it wasn’t right, but in the beginning it was almost like somebody made the shirt as a joke just to be a dickhead laughs. I mean, out of everybody, how come I get stuck on this T-shirt? I like being in control of what goes on in my life—that’s just the way I am.
How did they get a hold of your photo?
They got it out of a TransWorld magazine. It was an Emerica ad. Chris Ortiz took the photo.
Was it obvious that it was you?
Oh, yeah. My case was actually based on the fact that I’m an established character in this industry, and that they took the image I’d established and used it to sell their product. If I could prove that I was readily identifiable, then I’d win.
What’s the difference between this and skateboard companies ripping off corporate logos a few years back?
Personally, the way I see it, everybody out there should try to be as original as possible. But in this world, everybody is influenced by other things. The way things go, it’s so hard to be 100-percent original.
Is the lawsuit still going on?
No, I won the lawsuit. They have the option to appeal, but I don’t think they’re going to.
When you say “they,” are you talking about Kmart or somebody else?
I ended up suing the screen-printing company because whenever Kmart hires a vendor such as this screen-printing company, they do it under a contract that keeps them completely out of the picture.
What do you think the screen printer was thinking, just pulling an image out of a magazine?
It started with the artist; she made the artwork and then contacted the screen printer and said, “Look, I got this artwork on this disc. I’m going to send it to you.” I guess the screen printer got the disc, pulled it up on the computer, looked at it, and said, “Okay. Looks like it’d sell. Let’s make eight-hundred-thousand.”
What’s your advice for skaters or anyone who feels they might be getting taken advantage of in this way?
Always stand up for yourself in situations like that. When you feel like you’re being exploited for no reason, you get bummed, so you might as well try to take action. It’s really more the principle of the thing. If you grow up and try to do the right thing the whole time, and then someone cruises in and stomps you real quick, you’re like, “F—k off, man! I’ve been doing it the right way.”
Any words for potential thieves out there?
People like that need to just quit it laughs. They have no idea what skateboarding’s all about, and they don’t know how much dedication it takes to be a skateboarder at pro level. They can’t even conceptualize anything in our world, so why even be in our world?We should just set it straight from the beginning that skateboarders aren’t stupid, and we aren’t gonna tolerate any crap like that. It’s not like a huge deal, but I think it’s good to set an example so in the future this thing won’t happen, and skaters won’t be exploited—they’ll actually get the money they deserve. I mean, some of the kids out here are such gnarly skaters. They don’t realize that they’re risking their lives—it’s getting crazy these days.