Parody, Fair Use and Mash-Ups: More Copyright Info For T-Shirt Designers
by Michael Essek · Updated: May 27, 2020Last week I published a basic introduction to Copyright for T-Shirt designers.
This week we’re going to dig a little deeper and focus on an area that causes particular confusion: Parody and Fair Use.
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.
A Parody Design Is ‘Fair Use’ And Is Therefore Legal, Right?
One of the biggest misconceptions / misunderstandings around Parody and Fair Use is that it’s ‘legal’.
No it isn’t.
Well, it could be. The main thing to understand is this:
‘Fair Use’ is a legal defence.
The only way to know whether a design falls under ‘fair use’ is to determine that in court.
Or to put it another way: you can’t tell me (and I can’t tell you) what is fair use and what isn’t. It’s a legal defence term, and there’s no hard and fast rules that I can give you that will ensure your design never lands you in court – or that ensures that once you’re in court, you get a ‘not guilty’.
Parody is one of the potential reasons that a design may be considered ‘fair use’. But again – the only person who can ultimately decide whether a design is a ‘parody’ and therefore is legitimate fair use – is a judge or jury.
For a good overview of these concepts and a taste of what it feels like to be sued over your work, check out this video from h3h3:
So…I Can’t Make Any Parody Designs?
Of course you can. But just because your design is a ‘parody’ – that doesn’t mean you get a free pass on potential copyright infringement.
And anytime you design something that relies on the Intellectual Property of another person or company (whether that be a logo, character, phrase or likeness) – you are potentially breaking copyright law.
If the person or company you parodied wants to take you to court (and has the resources to do so) then they will. It’s only once that trial begins that you will be able to use the ‘Parody’ defence, and of course you don’t want to be in that situation in the first place.
My advice is don’t parody any person or company that:
- is likely to see or find your parody design with ease
- is likely to consider your parody design a personal insult or libellous
- has a history of taking copyright infringers to court
- already makes income from T-Shirts: either directly or through licensing agreements
and perhaps most importantly: Don’t use the company’s name (or brand / franchise name) in your design’s title, descriptions or tags.
What About Celebrities or Political Figures?
Political figures are generally considered fair game – and as such represent a much safer topic for your biting satire and parody designs.
Celebrities on the other hand are not fair game, and use of a celebrities image or likeness is technically Copyright Infringement, whether it is a ‘parody’ or ‘satire’ or not. Again, to determine whether your design is ‘fair use’ would have to be determined in court – which we want to avoid.
A Website Rejected My Design Citing Copyright Concerns – But I Think It Is Fair Use / Parody!
Any website / company can refuse to list, sell or host your design – should they wish to do so.
This brings us to another important concept to understand: getting your design ‘approved’ or ‘selected’ by a T-Shirt site doesn’t grant your design some automatic immunity from copyright claims. It simply means that the website will sell it – and they can (and will have to) take it down if a rights holder issues a Cease and Desist request.
Furthermore a website or marketplace takes no ownership of copyright when you sell on their site: copyright of the work stays with you. What this means is that Redbubble or TeeFury (for example) will not act as legal protection for you should a company or individual wish to sue you.
What About Mash-Ups?
Ah, the humble mash-up.
A ‘mash-up’ design is when someone takes two franchises, properties or characters and ‘mashes’ them together.
It’s an incredibly popular way to produce designs – because it requires relatively little effort (at least in the ideas department) and allows designers to trade off the brand equity of existing franchises.
For a visual representation of why mash-ups are so popular amongst T-Shirt designers – see the owlturd cartoon below:
(be sure to visit Owlturd.com for more great comics like that!).
So for a live example of a mash-up – how about Star Wars + Minions = this.
Is this ‘fair use’?
Almost certainly not – but again – fair use is determined in a court, and if there is no court case brought, the design hangs in a kind of ‘fair use purgatory’ where nobody knows for sure.
The defence in such a case would go something like this:
“This is original work – no-one owns the right to the idea of mashing Star Wars together with Minions – and as such it produces a funny and original parody and represents a ‘fair use’ of any existing copyright or trademark”
Nice try.
But I don’t think that would stand up in any court. First of all – such a design doesn’t really represent a ‘parody’ at all – there is no idea or message conveyed that could constitute a parody – rather the design relies upon two well-known and popular franchises to make a sale. Remove the overt references to these franchises and the design makes no sense and falls apart.
Harsh maybe, but that’s how I think it would go down. Hopefully for this designer, it never comes to that!
What If I Mashed-Up Your Face With My Butt?
…uh…I dunno, that doesn’t really sound like a parody either…
Alright, Enough Already. Got Anything Else I Can Read On This Topic?
I’m glad you asked!
The answer is yes. Here are some resources I have carefully compiled for your copyright related enjoyment:
- Threadless’s Take On Parody And Copyright Law – This is a handy article from T-Shirt site Threadless discussing their policies around copyright – and intended to provide advice to designers wishing to submit designs to Threadless. Especially useful section on what constitutes a parody.
- Ript Copyright Examples (PDF) – This is an article produced by Shirt-A-Day site Ript to explain what they look for in submissions and where they draw the line on copyright/parody etc. Some very interesting info and examples of cases of copyright infringement and parody that went to court.
- Fright Rags Owner On Copyright – The owner of the horror-shirts brand Fright Rags writes here about his various legal run-ins with copyright owners, including Universal Studios. Useful info about licensing the right way.
- T-Shirt Design Copyright Basics: 3 Facts Every Graphic Designer Should Know About T-Shirt Design – Handy post from Kunvay – and another one here: 3 Common Questions about T-Shirt Design & Copyright Law Answered
- The Great LoveCraft TeeFury Fiasco – See what went down when TeeFury posted a design that looked a bit like a design someone else did.
Alright – all clear on the Parody / Fair Use issue now? I hope so!
Any questions or confusion – drop me an email or hit me up on twitter.
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