When starting your designs for apparel and homewares you might encounter some confusing legal issues. Can I print something I found online? Who owns my designs? Copyright vs Trademark? What would I do if someone copies me?
As artists we work hard to create original art but the legalities of business can sometimes be over looked, so we’re gonna break some of it down to make things a little easier to understand. DISCLAIMER: This article is a friendly guide written by us here at the Club. We are not intellectual property lawyers or legal professionals. Please consult them for further advice.
COPYRIGHT / TRADEMARK
© Copyright is the ownership over a piece of work or art and the exclusive right to reproduce, distribute, commercially exploit, and otherwise profit from it.
™ A trademark is a type of intellectual property. Typically a name, word, phrase, logo, symbol or a combination of these elements.
E.g. You can copyright each tee design and trademark your brand name and logo.
MAKE IT – OWN IT
The first question is of course, who owns your art? And do I have to copyright my designs? The copyright usually automatically lies with the person who made the artwork. So if you drew it, you own it.
Legal Copyright registration ‘This © symbol’ is not necessary to protect the work. Copyright exists the moment the art is in a ‘fixed’ form. This means that the moment you draw in your notebook or save your new logo in Photoshop, you officially own the work – copyrights and all.
The only time you do not automatically hold the copyright is if the artwork is made for an employer or client. This will depend on what has been agreed upon when artwork is commissioned.
You only hold copyright to your design. Not the concept or idea. For example if you draw a picture of a cat riding a bike, you can not own the copyright for all pictures of cats riding bikes.
CHANGE IT – OWN IT?
There is a common theory that changing someones artwork 10% means your will avoid copyright infringement. This is not true. The courts determine the amount of changes based on quality rather than quantity, so if someone feels the essential features have been copied then it may still be a breach.
Pictured the famous case between The Associated Press and Shephard Fairey. This poster was created during Obamas first run for president independently of his campaign, however rapidly became the iconic symbol for hope and change. In January 2009 the photograph which Fairey allegedly based the design on was revealed and compensation was demanded for its use in Fairies work. Although no court case, a private settlement was reached in January 2011 which included a split in profits for the work.
Photograph : Mannie Garcia – 2006 / Poster : Shephard Fairey – 2008
Its on the internet, it must be free? Wrong. Using random images from the internet without consent is not a great idea. Images from the internet are usually protected by copyright even though they do not show the ©. Even if you are not using them for your tee designs and only to create a mood board on Instagram, always give credit.
Many images whose exclusive intellectual property rights have expired or have been forfeited have fallen into the category of known as the Public Domain. For example the Mona Lisa is within the Public Domain because Leonardo da Vinci died more than 70 years ago.
But we think creating new and original art is always the best idea. Most images from the Internet are also low res so not that great for printing onto apparel and homewares! Check our file set up tips for more info on high res art needed.
Book, lyric, movie and famous public figures’ quotes can also cause copyright issues. Some have passed into the Public Domain and are ok to use (e.g. Shakespeare). While newer famous quotes (e.g Quotes by Steve Jobs) are commonly used on products although a clear violation of copyright. How is that? Generally the holder of the copyright (in this case Steve Jobs’ estate) do not have time to go after the small brands, but as you grow and become higher profile, this could cause issues. The general fear that maybe one day they will come after you should be a big enough deterrent. Always attempt to create original content, get written permission to use quotes, or at least give the original author credit!
The world has gone Bart crazy at the moment, which could cause a few headaches with the creators of The Simpsons. Avoid using characters you didn’t create in designs unless you have a license to do so. The only instance in which using popular characters can passable is in a parody design which is where the new Bootleg Bart craze falls under. These pop up all the time. As long as you make it clear that your design is a parody. Don’t go too far though. You could be nabbed for defamation of character.
WHAT TO DO IF SOMEONE COPIES YOU
Lately it feels like more and more large brands are stealing from Independent artists and not giving them credit.
Make sure you have recorded your claim. Gather images of your art and theirs to show similarities. Attempt to establish when you first created the art and then contact a legal professional. There are plenty of great local options that can be found online.
Legal counsel will be able to advice on more solutions moving forward:)