What You Need to Know About Copyright Before Designing Your T-Shirt
10/28/2020 by Kyle Greco
I bet you have a ton of great ideas for custom T-shirt designs. But are they legal? The last thing you want to do is send your latest creation off to get printed, only to find out it can’t because you’re using something that’s been copyrighted.
You might be thinking, “who cares? Everyone uses copyrighted material all the time.” While you’re not necessarily wrong, that doesn’t mean the law will back you up. Do you really want to get a cease-and-desist letter about your new bestselling tee?
Of course you don’t. You’re going to learn everything you need to know about copyright first!
What is Copyright? What is a Trademark? And Why Does it Matter?
Who owns an idea? It’s a tricky question to answer. Over the centuries, governments have attempted to put laws in place to better determine what ideas belong to whom. I’m not going to go into the history of copyright law– feel free to check it out for yourself. The point is, copyright is a way to set standards for ownership of what is known as intellectual property.
Intellectual property, in this case, is literary and artistic works, ranging from books, music and paintings, to blueprints, software, and databases. When we say that something is “copyrighted,” we mean that the creator holds the rights to who can use it, especially in terms of using it for profit.
For example, let’s say I want to write a bestselling children’s book, “Harry Potter Commits Tax Fraud.” I would be in violation of JK Rowling’s copyright of the Harry Potter character, and the brand based around it.
If I wanted to use Harry as a character in my book at all, I would need Ms. Rowling’s express written consent. Guess I’ll have to go with my other idea, “Piggy Williams and The Multi-Level Marketing Scheme.”
Assets You Absolutely Cannot Use Without Express Permission
– Logos. doesn’t matter if it’s from a book, game, or sports team. Schools, universities and other organizations, as well!
– Pictures or artwork of sports teams, schools and universities, organizations, clubs, movies, books, games and bands. Sorry, but you can’t use that picture of Barbara Streisand you keep at your bedside.
– Characters from movies, books, comics and television shows. No embarrassing photo of Spongebob at the Christmas party.
– Viral Content such a memes and YouTube videos. Wait, what?? This one is confusing, so we’ll come back to it later.
– Images found on search engines or any other image that is not listed for commercial use.
– Celebrities exploited in any way, even if you created original content.
– Trademark companies and their logos, names and content.
What is a Trademark? We all know the little symbol represents when something is On Brand™.
In copyright law, trademarked material is intellectual property that helps distinguish one brand from another. This could be anything from a company name, logo, symbol, or slogan.
Most things that are trademarked have that symbol. Does that mean anything without trademark or copyright symbols is fair game for you to use? Absolutely not!
If you need a good rule of thumb, always err on the side of caution. That means asking for permission to use images made by someone else in your t-shirt design. Even if an image or logo isn’t trademarked at the time you make the shirt, that doesn’t put you in the clear.
If the original creator of said image files a trademark and gets it approved, they can litigate against you, even if you used their newly trademarked logo during the time prior to when they had the trademark approved.
Even if an image or logo isn’t trademarked at the time you make the shirt, that doesn’t put you in the clear.
For example: let’s say I’m super popular on TikTok (note: I’m not). I have a catchphrase that I say at the end of every video: “And that’s why they call me King Garbage!” Each video gets, like, a million views, which makes some random opportunist see dollar signs. After a few months of these videos, they begin making t-shirts with “And that’s why they call me King Garbage!” on them.
When I see this, I can go and retroactively apply for a trademark circa the first time I ever used the catchphrase. It doesn’t matter how long ago it was that I first used it, because it’s my intellectual property. Once my trademark is approved, I can then file a claim of trademark infringement against the person using my (iconic) slogan. It’s my intellectual property, and it’s integral to my brand.
I’ll admit, this makes the prospect of building on anyone else’s work sound impossible. But the world isn’t only made up of stuff you can’t use.
Are There Images I Can Use Without Getting Sued?
Yes, there are!
Images You Can Use, Worry-Free
– National symbols
– The likenesses of political figures
– Coats of arms
These types of imagery can’t be protected by copyright or trademark. That means you won’t get sued for using them as part of your t-shirt design. Note that this does not mean that you can use someone else’s work that uses said flag, national symbol, et cetera. So, a famous painting or photograph of any of the above falls under the same copyright rules that artwork does.
HOWEVER, there are photos and works of art (of flags and other things!) that you can use without requiring express permission from the creator.
There is a classification of creative work to which the rules of exclusive intellectual property do not apply. It’s called the Public Domain. In these cases, intellectual property rights have been waived (usually by the creator), forfeited, or have expired.
That’s right, copyrights have a finite lifespan! According to copyright law in the United States, any work created on or after January 1, 1978 is copyrighted for:
-The life of the person who created it AND
– 70 years after their death.
You can read more about it here. Any work that exists 70 years beyond its creator’s death moves into the public domain, where others can use it freely, along with any work that existed prior to copyright’s existence as a concept.
That puts quite a lot of creative work in the public domain! Shakespeare’s writing, Mozart’s music, and the earliest movies are all in the public domain. So go ahead, slap your favorite quote from Twelfth Night onto a t-shirt!
But the public domain isn’t made up of only old stuff. Some creators willingly put their new, original work directly into the public domain. Others opt to list their work under a different classification.
Creative Commons is that classification. It’s actually the name of a non-profit organization whose mission is to grow the number of creative works available for others to use and share legally. It has created several Creative Commons licenses, all of which are available for the public to claim for free.
Each of these licenses allows creators to specify which rights to their work they hold or waive.
Types of Creative Commons Licenses
– CC BY: Allows people to reuse the content (including commercially), so long as attribution is given to the original creator.
– CC BY-SA: Same as CC BY, with the additional stipulation that the reuser has to license the new creation under the same terms.
– CC BY-NC: Same as BY, with the stipulation that it can only be reused for noncommercial purposes.
– CC BY-NC-SA: Same as BY-NC. The reuser has to license their new creation under the same terms.
– CC BY-ND: The reuser is allowed to copy and distribute the material, including for commercial use. However, it must be reused in unadapted form, and with attribution to the original creator.
– CC BY-NC-ND: The same as BY-ND, except for noncommercial use only.
– CC0: This allows the creator to give up their copyright. The work immediately goes into the public domain. The work itself can be reused in any form, without attribution or any other conditions.
CC licenses aren’t a stand-in for copyright law. It merely acts as a conduit for creators to willingly give up certain rights they would normally hold under the traditional “all rights reserved” copyright clause. This is why, with works licensed under Creative Commons, you will see the term “some rights reserved” used to describe the copyright..
This makes Creative Commons licenses easy to understand and put into practice, while offering the maximum amount of flexibility for copyright owners and licensees.
But Creative Commons isn’t the only organization that offers flexible licenses.
Places to Find Work Licensed Under Creative Commons (Or Something Similar)
What Will Happen if I Use Trademarked or Copyrighted Material Anyway?
We at RushOrderTees can’t print copyrighted material without permission from the original creator. You’ll need to provide proof that you’re licensed to recreate the copyrighted material, otherwise we won’t be able to go through with the order.
To speak more generally, if a copyright owner discovers that you’re using their material without their permission, you will receive a cease and desist letter, either via email or snail mail. This letter lets you know that you’ve violated a copyright or trademark, and provide images of the ways in which you are in violation.
Upon your receipt of this cease and desist letter, you must immediately do just that: cease and desist from using the copyrighted material, especially if you are doing so for commercial purposes.
That means t-shirts designed with the material cannot be sold, and production of future t-shirts must be halted, as well. Have advertisements using the material? It’s time to pull them from their platforms.
Additionally, you will have to provide a detailed list of the remaining stock of the goods in violation, along with the stores you have marketed them to, the sales you’ve made off of them, and the contact information of the designer, along with other details.
Furthermore, you’ll have to provide a written assurance that you will no longer violate the copyright or trademark, nor will you attempt to register the trademark under your own name. The time to get all of this done? Ten days.
If that sounds like a headache to you, it gets worse. Providing all of that information is the tip of the iceberg. Once it’s in the hands of the copyright owner, they can still take legal action against you. The information you give them merely helps determine if it’s worthwhile for them to sue.
Often, copyright owners will choose to settle out of court, and make you sign an agreement acknowledging your wrongdoing and promising to not do it again, under penalty of further legal action.
You won’t even get to keep the profits made from selling the infringing merchandise. If you don’t forfeit the earnings in their entirety, you will at least have to pay anywhere from $1,000-$20,000 in penalties.
If you opt not to settle out of court, the copyright owner can sue you for damages and more. This often tends to be the more expensive route, as if you lose, you will likely be required to pay their legal fees, as well.
The bottom line? Don’t use copyrighted material if you don’t have permission to!
What About Fair Use?
I can hear you screaming this right now. The concept of ‘fair use’ is probably better-known now than ever before, thanks to the proliferation of YouTube videos uploaded with this in the description:
Copyright Disclaimer under Section 107 of the copyright act 1976, allowance is made for fair use for purposes such as criticism, comment, news reporting, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.
Paranoid boomers, socialist millennials, and gen z nightcore producers all treat this as their “get out of jail free” card when it comes to using copyrighted material. But is “Fair Use” actually a thing?
Yes– to a certain extent. Fair use is an element of U.S. law allowing the use of copyrighted material without prior permission, but in limited circumstances. It’s designed to strike a balance between the interests of copyright holders with that of the general public.
This can be applied toward a broad variety of situations and technologies, including reverse engineering software, internet searches, and even the humble act of taping the last episode of “Friends” via VCR. Of course, how that material is used is crucial. In order to fall under fair use, the work must be used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research.”
That sounds pretty broad, now doesn’t it? Being that it is rather open to interpretation, the US Copyright Office has further guidance to help you determine if your usage is “fair” or not.
Four Points of Guidance to Determine Fair Use
What is the purpose and character of the use? A teacher copying an excerpt from a book to give to their class as part of a lesson is different than, say, printing that excerpt on a t-shirt and selling it.
What is the nature of the copyrighted work? Does your act of copying the work damage the copyright owner’s ability to profit from their own creativity?
What is the ‘amount and substantiality’ of the portion you’re using in relation to the whole of the copyrighted work? A teacher who copies an excerpt of a book is less likely to get in trouble than a teacher who copies a whole book.
What is the effect of the use upon the potential market for or value of the copyrighted work? Again, are you ruining someone’s chance at making money off of their own work if you copy it?
In the case of t-shirts, determining ‘intent’ can be a tricky area to navigate. Using an image of Buzz Lightyear on a custom shirt might be fine, provided it’s for noncommercial use. For example, making Buzz shirts for a group of outer space-loving kids at a children’s hospital is probably fine, but not explicitly. It might still be questionable, because the user could be forced to prove it’s not cutting into the profits of Buzz’s owner, Pixar.
Now, if it’s going on a shirt for a more formal organization, like a charity, you may run into problems. That’s especially true if the charity is dedicated to a questionable cause, like sending orphans into space. Proving fair use will be a lot harder in that case, as using Buzz’s likeness in that manner could be seen as damaging his reputation, and thus, Pixar’s chance at profitability.
A good rule of thumb: if you’re not making any money off of it, you’re probably okay, but it’s not a hard and fast thing!
Parodies Can Be Fair Use
One of the things that makes this country great is the ability to make fun of people in power. Who doesn’t love a good parody? Well, sometimes, the people or things being parodied. Mattel wasn’t too happy when artist Tom Forsythe used barbie dolls in his “Food Chain Barbie” photography project, and tried to sue him for copyright infringement. But the suit failed, as Forsythe was able to defend his use of their toys under fair use.
One still has to be careful when making such a parody, though. The new work using the copyrighted material must ridicule the original material itself. If it is judged to be satire– that is, comment on a different topic, or a broader theme– the use is less likely to be deemed fair.
If you want to make a parody, it should strongly mock the copyrighted or trademarked material you want to use. The parody also needs to have clear differences from the original work. For good examples of how to do this, check out the McDondal’s Instagram account, or the Dumb Starbucks episode of comedian Nathan Fielder’s show “Nathan For You.”
Wait, So I Really Can’t Use a Meme?
The precedents set by parodies in terms of fair use begs the question, “aren’t all memes just parodies?”
They might be. Your liability for using an image or character can be determined by different factors.
– Whether the person sharing the meme can make money from sharing it.
– The extent to which the copyright holder’s work has been copied.
– Whether the images and likenesses of certain characters can be deemed famous, and thus susceptible to other uses.
– The potential the meme has to damage the copyright holder’s brand.
Whether the copyright holder chooses to even pursue a violation in the form of a meme is an altogether different story. In many cases, it will largely depend on whether it’s for personal or commercial use. Posting your favorite meme on your personal facebook page, or making it into a custom t-shirt isn’t necessarily going to be viewed as harshly as if you post it on your business’s facebook page, or sell said shirt.
Ultimately, the holder may not care. They might even appreciate being a part of internet culture. But it’s impossible to know for sure without asking for permission first. Tread carefully!
And remember, this does not count as legal advice. Consult with a lawyer if there is anything you’re unsure about!
About the Author
Kyle Greco Kyle Greco is the resident writer at RushOrderTees, where he blends word nerdery with his love for T-shirts. A graduate of The College of New Jersey, he is interested in exploring the intersection of clothing and culture. In his spare time, he makes music, builds guitars, and cooks with his wife. He enjoys hot dogs, sports, and collecting too many hats.