When you are researching content for new designs searching the status of copyright should be one of your most important steps. Why take the time to create a design and upload it to your Print on Demand service only to have it taken down because the design has been copyrighted or trademarked? Where is the best place to check the status of copyright? Let’s talk about it…
Before we go any further, it needs to be made absolutely clear that I am not a lawyer, and comments, information, observations, and suggestions in this article are for your information only and should not be considered to be legal advice in any way. If you have questions about whether you have violated copyright law or need advice on legal matters of copyright, I advise you to seek counsel of an attorney who specializes in copyright and copyright law.
What is copyright?
Copyright and Trademarks are the most important kind of Intellectual Property (IP) protection that need to be considered when discussing or creating designs for Print on Demand. You will often see people refer to intellectual property when discussing the use of copyrighted or trademarked designs in PoD forums, but what is intellectual property? IP is works created from the mind including literary and artistic works, inventions, designs, symbols, names, and images used in commerce. Intellectual property rights protect artists’ work from being copied and used without their permission (we don’t ever see that in print on demand, do we?).
While intellectual property protections extend to four different types, copyright, patents, trademarks, and trade secrets, only copyright and trademarks are generally applicable to print on demand artists. Patents and Trade secrets are more applicable to the back-end printing side of PoD, so we won’t discuss those in this article.
How do Copyright and Trademark differ?
You often hear copyright and Trademark used interchangeably, but they mean two very different things. Copyright is intellectual property protection geared toward literary and artistic works. Works covered by copyright range from paintings, photographs, books, music, videos to technical drawings, maps, and advertisements. A trademark is a type of intellectual property geared toward items that help define a brand, such as company name, logo, or symbols, and that help distinguish one entity from another. When you create a print on demand design, it is covered under copyright once it has been published. The definition of being published varies so be sure to read up on the current definition if you find yourself in a copyright legal battle.
A trademark is like the Nike “Swoosh”, which is a symbol that defines the apparel company, and differentiates it from other clothing companies, even if they make similar items. Think of the difference between Nike and Adidas, you know their logos and they are instantly recognizable. This is why trademark protection is important, if you were to use a design that “played off” or parodied the logo of a company like Nike, they would be well within their right to come after you especially for print on demand because you would be using their logo on clothing, which would be in direct competition and they could easily demonstrate their loss of revenue form your using their logo.
Copyright protection allows the creator of a piece of art or song to make and sell copies of their works, to create derivative works, and to perform or display their works to the public.
Fair use is often cited as a right to use something that was published on the internet. This is where things get a bit muddy. A copyrighted work can be used for educational purposes, research, parody, or commentary. Ah, there we go! Does that mean you can use the Baby Yoda character riding a Nike swoosh if you put funny words and treat it like a parody? No. it will likely not be considered fair use if it’s for commercial gains, like print on demand. This also applies to the impact on the market, if you sell that shirt with the Nike logo, you are taking money (potentially) out of the pockets of the rightful copyright or trademark owner.
The more creative the work, the more heavily it is protected under copyright. Artwork, novels, songs, poems, and movies involve a lot more creative effort, and copying this type of material is less likely to support a claim of fair use. This is why you can’t legally use lyrics from a Beatles song in your print on demand design. Even though you might not put the title of the song in your design, the lyrics and music are all copyrighted and cannot be used without permission.
This leads to the final argument for fair use, and that is the fictional 10% rule, which says as long as I change 10% of the design or work I can use it. This is commonly cited when discussing EDM or Rap songs that use samples. There has been a myriad of court cases around this 10% rule and most of them failed. It is just better safe than sorry in this case. Don’t use copyrighted work period – not even parts.
How do you know if the work you want to use is copyrighted? The simple rule of thumb is that if you didn’t create the work you can’t use it. If you drew a “fanart” Pokémon you cannot use it in your shirt design. If you didn’t write the song, you can’t use the lyrics in your design. If you didn’t take the photograph you can’t use it in your design. But what about words? Words used in specific orders can be trademarked “Let’s get ready to Rumble” is copyrighted by ring announcer Michael Buffer and cannot be used without permission. “Just Do It” is owned by Nike and also cannot be used without permission from Nike.
How do you check copyright?
If you come up with a cool phrase or want to know if a phrase can be safely used in your design, check the phrase in the following websites. In general, if the listing says that it is live, then it is a phrase or word, or symbol that should not be used in your designs. If the phrase was trademarked or copyrighted at one time but the copyright has expired, then you should be able to use it safely. Use your best judgment, use caution, and if you have questions check with a copyright attorney. Again – I’m not suggesting a course of legal action here, just illustrating my copyright workflow.
Middle of the page – click Search our Trademark Database (TESS) and enter your term. This will show if there are entries for your phrase and if it is currently live.
United States Copyright Office: WebVoyage (loc.gov)
You can search by title, name or keyword in this search field.
Where’s my house?
If you have searched the above references and still aren’t sure whether you should use the phrase or logo in your designs, it is always better to not use them. For me, the amount of money I will get from the sale of the shirts is not worth risking my personal assets. If you want to use a copyrighted work, you can always contact a copyright attorney, they can determine the owner of the property and contact them for you. The attorney will negotiate a use cost and restrictions and you can go from there. If that sounds like way too much trouble and money to go through for a shirt design – you are correct. That is why it is just better to move on.
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Get out there and get designing!