No Protection for Short Phrase T-Shirts

FUNNY ASS SHIRT by Douglas Muth from Flickr (Creative Commons License)

I regularly get questions from people who sell shirts on Etsy, Café Press, or a similar website and they claim that another user is stealing their design. When I look more closely at the situation, I see all the person is selling is shirts with a short phrase, in a common font, and no other artwork or design elements. Many times, I have the unfortunate responsibility of telling them that there’s no intellectual property in their design, so there’s no infringement (that’s legalese for “stealing”).

No Copyright in Short Phrases
Copyright applies to original works of authorships when they are fixed in a tangible medium. A t-shirt is a tangible medium, and it’s possible to have an original work on a garment. However, short phrases aren’t original works, so the act of merely printing one on a shirt does not create a copyright-protected article.

If that’s all you’re selling – word or a phrase on a shirt – there’s likely nothing you can do (from a copyright perspective) to stop your competition from selling a shirt with the same phrase on it. If you look on any of these DIY shirt and craft sites, you’ll see the same phrases on shirts from different sellers. There’s no copyright protection for words, images, or phrases like “geek,” “reasonable person,” “Introverts Unite! Separately in your own homes,” and even more creative phrases like “terminally soulless douche canoe.”

The Anti-Titanic Shirt

This used to be less of a problem before we had Teespring, Zazzle, and sites that make it easy to create and sell shirts and whatnot. In the past, if you wanted to sell a shirt, you had design it, have it printed, and then sell them in shop or on the street, or if you had html skills, you could create a website and people could mail you a check for a shirt. That’s what my friend, Peter Shankman, did when he sold anti-Titanic shirts in 1998. He started selling them in Times Square and then sold them online. He was a success, in part, because he had no competition.

What Could be Infringement
Every t-shirt design on Etsy is not up for grabs. Copyright does not protect short phrases, but it does protect designs with original artwork on them. Additionally, copyright protects the images you post of your shirts on your site. If you see another seller using your photos, that would likely be infringement (assuming it’s your photo). Sending a DMCA takedown may be sufficient to get them removed from their online store.

The other thing to watch for is trademark infringement. A seller can use a short phrase as a trademark to brand their wares. They can also create a logo that they put on their products. If you see someone using your trademark or a mark that is similarly close to yours, that could be infringement and worth investigating.

Beat the Competition in the Marketplace
For anyone who is selling these types of shirts, the best way to deal with your competition is be better than they are. Give your customers a reason to buy from you than from another seller, or having it made at a t-shirt shop. It could be your prices, the quality of the garments, or something about your company that makes you more desirable than the others.

Beyond that, you may want to consider upping your t-shirt game by creating or purchasing designs that will be protected by the Copyright Act.

Copyright is an area of the law with many gray areas, so if you’re having legal issues regarding your copyright rights, you can contact me directly or an intellectual property lawyer in your community. I regularly post about copyright and other IP issues on TwitterFacebookYouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Working with People who Don’t Understand Copyright

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Here’s the scenario: You are a newly hired third party content creator for a company. You learn that your client has a habit of copying pictures from Pinterest or Google Images searches without verifying that they are allowed to use the images on their website and/or social media posts. They want you to do the same. What should you do?

Option #1: Your Client Needs an Education about Copyright
Some people truly believe they can use any image they find on the internet, particularly if they give an attribution and a link back to the original. There are so-called “gurus” who will tell you this is ok. It’s not.

What your client is likely doing is committing copyright infringement. Inform your client that he/she is running the risk of getting a cease and desist letter, a bill with a license, or a lawsuit. In the worst-case scenario, they could face a lawsuit for $150,000 per image they use, plus attorneys’ fees. Tell your client to thank their lucky stars they haven’t faced one of these consequences yet and advise them that the prudent thing to do would be to replace all images on their site with pictures they can legally use.

Use this an a teaching experience to educate your client about the importance of asking permission, using Creative Commons, and possibly exploring whether what they are doing in some situations qualifies as fair use.

Option #2: Your Client Understands but Disregards Others’ Copyright Rights
Fire your client.

This person is obviously an idiot. No money is worth being affiliated with this company. Run away as fast as you can.

Footnote: Every company should have a “No Jerks” rule when it comes to employees and clients. If you find someone violating this rule at a genetic level (not just having a bad day), cut all ties with them immediately.

The same rules about copyright that apply to your website also apply to your social media posts:

Whenever I work on a contract for the relationship between a company and an outside content provider, I always recommend that my client require an indemnity clause that will protect them if they are accused of intellectual property infringement based on material provided by the other party. Your contract is the master document for your working relationship. It should clearly define the parties’ obligations to each other which should include deadlines and deliverables and also how you will resolve problems when they occur.

If you want to know more about the complex issues related to copyright and the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Richard Prince’s “New Portraits” – Art or Infringement?

Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

What to do if You’re Accused of Copyright Infringement

Watch it or lose it - thieves at work by Tristan Schmurr from Flickr (Creative Commons License)

Watch it or lose it – thieves at work by Tristan Schmurr from Flickr (Creative Commons License)

The owner of a copyright has the exclusive right to control where their work is copied, displayed, and distributed. If they think that someone is using their work without permission, there’s a good chance they’re going to react. They may be passive aggressive and write a blog post about you. They might b direct and send you an email or call you. If they sell their work for a living, they may just send you a bill. They may also hire a lawyer to send a cease and desist letter, a DMCA takedown notice to your webhost, or they may just sue you.

If you are accused of violating someone’s copyright, the first thing you want to do is examine the situation. What are they claiming is on your site or your materials that belongs to them? Some people will tell you that you can use anything you find on the internet as long as you provide and attribution and a link to the original – and that’s just not true. What you may have done is commit infringement and admit it. So look at the image or text in question and try to determine where it came from. If you created it from scratch, there’s a good chance it’s not infringement. If you got it from someone else, you may have a problem.

In most cases, it’s a good idea to schedule an appointment with your copyright lawyer if you’re accused of committing infringement, especially if the other side contacted you through their lawyer. He/she can examine the situation, explain your options, and help you choose the right course of action for your situation. In most cases, the person who claims you stole their work doesn’t want to sue you. They likely want you to stop using their material, and possibly pay a licensing fee for the time you used it. In many cases you want to respond either as yourself or through your lawyer with what you did or could do to resolve the situation.

There are times where you might want to risk not responding. Some people do this is they think nothing will happen if they ignore the notice from the person claiming you stole their work. Sometimes this is effective. Sometimes it leads the person to escalate and sue you or report your company to a regulatory body that oversees your company. It’s not a decision to make lightly.

So what are the best and worse-case scenarios in these situations? In the best-case scenario, the person making the claim against you is wrong because you haven’t violated their copyright sending a response to that end or ignoring them will resolve the situation. In the worst-case scenario, you’ll be sued (and lose!) for willfully stealing someone’s copyright and sued for $150,000 per image or article you stole, plus the copyright holder’s attorney’s fees.

Legal Side of Blogging Book CoverBecause the penalties can be so high, you want to be careful when you use other people’s content on your website or marketing materials. You need to be sure that you own or have permission to use content created by third parties.

If you need a legal resource on this topic or anything related to the laws that apply to social media, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Be Leery of Free Image Sites: You May Inadvertently Commit Copyright Infringement

Palm Sunset by Lawrence Rayner from Flickr (Creative Commons License)

Palm Sunset by Lawrence Rayner from Flickr (Creative Commons License)

I cringe every time I hear people says they use Google Images to find pictures for their websites because I know most of them are using anything they find in the search results without adjusting the settings to only show images that give them permission to use them. And I love it when people, especially entrepreneurs, use Creative Commons, seek out other sources for free images, or purchase a license to use images from iStock. Unfortunately, there are times when business owners think they are doing everything right, and they don’t realize they’re not until they’re threatened with legal action.

I have heard about a few situations over the years when someone has stolen images from a photographer and made their work available for free without the artist’s permission. Sometimes the person who steals the original image cuts off the photographer’s watermark or signature before posting them online. These photo thieves may post these images on their own site as free images or wallpaper. You might download this work and use it on your site, thinking that you are acting within the limits of the law.

When the photographer realizes that their work has been stolen, they’ll probably be angry – and they might send letters than demand payment or threaten legal action to every site where their work has appeared without their permission. And rightfully so – as the copyright holder, they have exclusive right to control where their work is copied and distributed. The fact that you didn’t know that you were doing anything wrong will not absolve you. If you’ve used an image where the watermark or other copyright notice was removed, they could accuse you of committing copyright infringement (punishable by up to $150K in statutory damages per violation) and removing the copyright management information to facilitate the infringement (punishable by up to an additional $25K per violation).

So what do you do if you receive one of these demand letters? Contact a copyright lawyer immediately. You want to verify that the claim is legitimate and strategically plan your response. If the claim is legit, the artist likely wants you to pay their licensing fee and/or stop using their image. It’s probably best to let your lawyer respond on your behalf but if you choose to respond to the letter yourself, it’s a good idea to have your lawyer at least review your response before you send it to make sure that it’s thoughtful and reasonable.

What should you do to avoid this type of problem in the first place? Be leery of free wallpaper sites. I have more faith in images I find through Creative Commons – though it is possible that someone could steal another’s image and make it available with a Creative Commons license. You can always run the image you want to run the image through the Google Image search engine to see where else it is being used online. That may help you determine if the image might be stolen. If there ever is an image that you want to use on your site and you’re unsure if you have permission to use it, explicitly ask the artist for their permission.

If you want to learn more about copyright issues on the internet, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has several chapters dedicated to copyright. You can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Why You Have to Respond to Suspected IP Infringement

Cease and Desist by H.L.I.T. from Flickr (Creative Commons License)

Cease and Desist by H.L.I.T. from Flickr (Creative Commons License)

A few weeks ago we all had a good laugh when Jeff Briton, owner of Exit 6 Pub and Brewery in Cottleville, Missouri got a cease and desist letter from Starbucks when he named one of his craft beers “Frappicino.” Starbucks said this was too similar to their Frappuccino and even took the liberty of contacting the beer review website Untappd to get the Frappicino beer listing removed.

Briton responded with a letter and a check for $6 – the profit he made from selling the beer to the three people who reviewed it on Untappd. If you haven’t read this letter yet, go do it. It’s hilarious.

My hat’s off to Briton for writing such a brilliant response and turning this situation into an awesome opportunity to promote Exit 6. Some people might say that Starbucks’ lawyers were being jerks for sending a cease and desist letter to the little guy who wasn’t their competition anyway. But it was what Starbucks had to do to protect its intellectual property.

When you have a copyright or a trademark and you know that someone is using your intellectual property without your permission and you do nothing, you send a message that you don’t care about protecting your intellectual property rights. If you let the little guys get away with things like Frappicino beer and then one of your big competitors does something similar and you try to lay the smack down on them, your competitor will have an argument that your track record shows that you let others use your property without permission or penalty. By not protecting your intellectual property, you put yourself at risk of losing your intellectual property rights.

It’s because of this risk that Starbucks has to send cease and desist letters to Exit 6 Pub. This is why I tell clients to keep an eye out for other people using their intellectual property. In trademark situations, a cease and desist letter is usually the proper response, even in situations like Frappicino beer.

This is also why I tell bloggers and photographers to be diligent about who is using their work. If they find that someone’s using their copyrights without permission, even if they’re ok with it, I often recommend they contact the alleged infringer and grant them a license after the fact and request an attribution if the infringer didn’t give them one. If they’re not ok with what the alleged infringer did, we discuss whether the artist wants to send a cease and desist, a DMCA takedown notice, a licensing agreement with a bill, or sue for infringement. There should always be a response.

If you have questions about your intellectual property rights or your strategy to protect them, please contact an intellectual property attorney in your community. If you have questions related to copyright or trademark and blogging, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

If you want to chat with me more about this topic, you can connected with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.