Copyright and T-Shirts: An Introduction To Trademark And Intellectual Property For T-Shirt Designers
by Michael Essek · Updated: April 10, 2017There is a lot of confusion around ‘copyright’ in the world of selling T-Shirts online.
- Is it ok to create designs based on Movies, TV Shows or Bands?
- What if I want to draw a celebrity, and sell that on a T-Shirt?
- Do I need to register my work to make sure it is copyrighted?
- What about Trademarks and Intellectual Property?
In this blog post I will clear up these questions and more, so that you’ll have a clear idea of what is ok (and what is not ok) when it comes to creating designs for T-Shirts, and selling them online.
Legal Note: I am not a lawyer. This is not legal advice and should not be treated as such. For professional legal advice please contact a lawyer.
What Is Copyright?
The technical definition of copyright is as follows:
the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.
In other words, copyright refers to the (exclusive) right to publish and profit from a piece of work that you have created (and by implication, the legal right to stop someone else from publishing or profiting from a work they did not create).
Important Note: Copyright applies to a ‘work’. It does not cover ideas, phrases, concepts, sayings or any other ‘intangible’ assets. Copyright can only apply to something that has been created: eg. A design (an artwork file on your computer) – an audio recording, or written material like a book or article.
I Want To Create Designs Based Upon A Movie Or TV Show. Is This Legal?
Technically, no.
When you create a design based on the Intellectual Property of another person or company (in this case – the creators or owners of a Movie or TV Show) – you are violating their intellectual property rights (even if you create an original work).
So if you create a Mickey Mouse inspired T-Shirt design – without the express permission of, or relevant license from Disney – you are infringing Intellectual Property Laws. This is not legal.
The Bottom Line: Don’t create designs that rely on the intellectual Property of others.
But Everybody Seems To Be Getting Away With It!
This is quite accurate. IP (Intellectual Property) Infringement is widespread, and the internet and Print-on-demand sites have made it incredibly easy for people to profit from it.
But that does not make it legal. Technically, any individual profiting from IP Infringement could be taken to court by the proper rights holders, and sued for loss of earnings or other damages (such as damage to a brand’s reputation).
The reason this doesn’t seem to happen very often is simply because it wouldn’t be worth the cost, in most cases. But that doesn’t mean it cannot happen – it does.
OK Fine But Let’s Be Honest. How Likely Am I To Be Sued By Disney?
Well perhaps not very likely (unless your business does really well).
But they can very easily get designs removed with a Cease and Desist.
So if you have a design that was bringing in good money that suddenly gets dropped from your sites – you could be looking at a serious loss of income. You could also lose your seller account – depending on the Marketplace or Website that you are selling on – and that could again hit you very hard in the pocket.
So What Is A Cease And Desist?
A Cease and Desist letter (or Takedown Notice) is the usual mechanism by which a rights holder will get an infringing work removed from a website.
For example, you create a Mickey Mouse T-Shirt, and make it available for sale on Amazon.com. Disney sees your T-Shirt, and issues a Cease and Desist letter to Amazon. Amazon then removes your design from it’s website.
A Cease and Desist letter (or email) is a legal document – but it isn’t the same thing as being sued. It is effectively a warning for someone to cease illegal activity, otherwise further legal action could follow.
So I Can’t Create A T-Shirt Of My Favourite Celebrity, Even If I Draw Them Myself?
You can of course draw celebrities all day long – the problems arise when you want to sell that drawing in the form of a T-Shirt (or really, when you want to profit in any way from the likeness or name of another person).
And if you ever want to sell your creation, you will probably want (or need) to use the celebrity’s name in your product’s Title, Description, Tags etc. (In order to get your product in front of the people who might want to buy it). And in doing so you will be advertising your design to any rights holders who are on the lookout for infringements. (Rights holders who make significant income from T-Shirt licensing are the ones most likely to come after you).
So unless you can sell without using the name of the celeb – it’s much safer to create original work that doesn’t rely on the names or likenesses of famous people whatsoever.
Side Point: It isn’t just the likenesses of the famous individual you should be concerned about; photographers have also been known to take legal action when their images are used as the basis for designs. See here.
I Hear Ya, But I’m Gonna Go Ahead Anyway. Everyone Else Is Doing It.
Hey, do what you like, I’m not your Dad.
But just think ahead a few steps – do you really want to be looking over your shoulder, waiting for that next Cease and Desist letter?
Also consider this: If you ever wanted to sell your T-Shirt business – with a design inventory full of copyrighted stuff – then your potential buyers will take that into account. This could knock a lot of money off your business valuation.
And Finally: Many T-Shirt selling platforms and websites are increasingly aware of copyright issues – and are actively working to prevent infringement. What this means in practice is that your designs may be rejected outright (before they even go live), or could be removed without notice by the platform or site – even without a Cease and Desist from the rights holder.
Sites like Redbubble and Merch by Amazon want good quality, original content. They don’t want to deal with thousands of copyright notices everyday, so they are going to punish those who cause problems for them and their legal teams.
Ok I’m Gonna Go Straight. Do I Need To Register A Design For Copyright Protection?
Copyright does not need to be registered with any government or legal body in order to be in effect. As soon as you create a ‘work’ you have everything you need to claim copyright protection.
So, let’s say you create a new design for a T-Shirt. As soon as you finish that design – and whether you actually publish it (eg. Upload it to a website) or not, your design is protected and you are the sole copyright holder.
What this means is that if someone else were to steal your design and publish it or sell it (Copyright Infringement) then you as copyright holder would have the legal right to get the stolen design removed (a ‘cease and desist’ letter or email is the usual way this works).
How Do I Protect Myself From Others Who Might Steal My Work?
First the bad news: Copycats are a fact of life. With the barrier to entry being so low – any popular design is a target for theft, and this problem threatens all creators (large and small). There is no fool-proof way to prevent others stealing your work – but there are ways you can minimise the effects on you and your income.
Here’s some quick tips:
- Google Alerts. Use this to alert you of potential thievery. It doesn’t work in all cases, but it can be a handy way to alert you when someone has stolen your design outright (though only if they use the same title as you did).
- Setup a dedicated site for your brand (if you haven’t got one already) alongside a ‘[email protected]’ email address. When you create a new design – publish it to your site – and make sure the date of publication is visible. When you do issue a takedown notice (cease and desist) you should email from your legal@ address, and you can refer to your website as evidence that you were the original designer.
- Beat the copycats at their own game. Sell your design on the same sites the copycats would use – and be the first there. The more space you take up, the less likely it is that copycats will eat into your revenue.
Someone Has Stolen My Design. Help!
Boy does this suck.
Being a victim of Copyright Infringement is never nice, but if you know how to deal with it you can usually get things removed pretty quickly.
You’ll need to issue a Cease and Desist as discussed above, and most big sites have a system for dealing with these (usually they have online forms so you don’t even have to email them).
Here are some links:
- Amazon – Report Infringement
- Etsy – Intellectual property infringement report
- TeeChip – Intellectual Property Rights Policy
- Facebook – Copyright Report Form (you’re looking for ‘I found content which I believe violates my copyright’)
Someone Created A Design Really Similar To Mine. Can I Get It Taken Down?
Probably not, unless the design uses some element of your original work ‘pixel for pixel’.
For example, if someone takes the original illustration from your work and simply changes the font you used – you could get it taken down.
But if they created a whole new piece – even if it looks really similar to your design or they followed your overall layout or colour choices – you will probably not be able to get the work removed.
I Came Up With A Funny Saying. Is This Covered By Copyright?
No. Copyright only covers actual created ‘works’ – not phrases or sayings.
You can get legal protection for an original phrase or collection of words; this is called registering a Trademark.
Getting a Trademark does require registration (unlike copyright) and is a paid service that usually costs around a few hundred dollars.
I hope that’s a decent introduction to the concepts of Copyright, Trademarks and Intellectual Property as it relates to selling T-Shirts online. If you have any questions please post them below and I will do my best to answer them.
Update: For my follow up article about Copyright, Parody and Fair Use, click here.
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