With the popularity and use of the internet it has become increasingly easier to start your own company and sell custom printed products such as t-shirts. But with this convenience also comes many legal problems. It is easier than ever to search Google Images, Pinterest, or a popular t-shirt company and find images that we might want to for t-shirt designs. However, in many cases this is illegal and might be considered copyright and/or trademark infringement. In the United States, there are registrations that impact t-shirt designers include trademark and copyright that are issued by the federal government and protect two distinct types of intellectual property including copyright and trademark.
In its most general definition, 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. Work is automatically copyrighted when it is created; however, registering the copyright with the The U.S. Copyright Office is required if a business wants to sue over the use of the material by another party. Copyright tends to be more geared toward literary and artistic works and they protect the following:
- Books, articles, web content
- Paintings, photographs, and visual works
- Songs, movies, television shows and ads
A trademark is a recognizable word, sign, design or expression that identifies and distinguishes the source of goods of one party from those of others. Trademark tends to protect items that define a company brand. and they protect the following:
- Business name, brand, or product names
- Logos or marks used to identify a company or product
- Company slogans or phrases
What does this mean for t-shirt designers? Using any artwork from the internet that you don’t own or didn’t make is ILLEGAL.
What you CAN’T use for t-shirt design
- Names, logos, pictures or other intellectual property of musical groups or musical artists OR their lyrics.
- Names, logos, pictures, or other intellectual property of sports teams, colleges/universities, clubs or organizations such as Boston Red Sox, Girl Scouts of America, or Harvard University.
- Characters, images, actors or likenesses from cartoon networks, comic books, video games, movies, and television shows.
- Trademarks, names or logos for companies. For example you can not use the name Nike, Nike “Just Do It” or the swoosh logo.
- Photos, caricatures, or other artwork depicting a celebrity. Just because you take a picture of a celebrity, draw it or trace their likeness, it does not give you the right to use the image on shirts. “But it is my own drawing” Well, it isn’t that simple and even if there is no evidence
- Any image or graphic that is not listed as free for commercial use (i.e. images you find on Google images).While it may seem like no one will notice, it is a violation unless you the original author has clearly stated it is free for commercial usage.
- Phrases/Quotes/Sayings from various forms of media including television, books, lyrics etc.
- Internet Meme / Viral Video inspired t-shirt designs. Many internet memes are based on someones image and can’t be used. And creating t-shirts inspired by a viral video can be a problem. Many times those who create a video do not plan to and there may be some lines that would make for great t-shirts.
What you CAN use
- Any image or graphic that is royalty free for COMMERCIAL use.
- Any image or graphic that is considered public domain.
- Any image or graphic that is 100% your design.
What to watch out for
- Even if there is not a trademark today for a phrase or slogan used if the original creator files a trademark and it gets approved they can come after you during the time BEFORE their trademark was approved. This is because when you file a trademark you can enter your First Use date and that date can way before they filed a trademark. Take a YouTube viral video as an example. If someone posted a video on YouTube that got really popular, an artist or marketers instinct might be to create a t-shirt design around it. The person who created the video hasn’t filed any trademarks but when they see others monetizing their work they can go and file a trademark and put a First Use date of when the video actually posted, even if that is 6 months or a year prior. They can then file a claim of trademark infringement on you for the time BEFORE they even had registered the trademark.
- How you advertise your products makes a huge difference trademark/copyright infringement. A t-shirt design sitting by itself in violation with no references with a first name or an animal may not violate any trademark. However, the moment you add a television show or sports team in your product description, website title/description, or advertising it shows the connection between a name or an animal which means you are now violating someone's trademark.
- There are many services that sell/license artwork for t-shirt designs. You need to make sure that their terms of service or licensing terms allow you use the artwork for Print on Demand services. For whatever reason some companies restrict the print on demand usage of their artwork. These rules are typically in small print in their legal documentation.
What happens when you violate a trademark/copyright?
You will generally receive a cease and desist letter by email and/or registered mail by an attorney who represents the trademark owner. This letter will inform you that you have violated a trademark/copyright and will include a copy of the trademark and screenshots of the design that violate their trademark.
The cease and desist will request that you immediately cease and desist of all the infringing designs as well as immediately cease all plans for the production, marketing, or manufacturing.
The letter will usually request that within 10 days that the following details be provided or confirmed:
- Detailed list of all stores online and physical which you currently or have marketed the infringing goods and including contact information for all those locations
- Full accounting of all the sales you made with the infringing goods
- The name/contact information of the designer if it wasn’t you
- List of what stock remains of all infringing goods
- Copies of all marketing materials
- Confirmation that all advertisements and/or references to the design on or off your website as well as any 3rd party websites who may have posted your products online.
- Written assurance that you will no longer use the trademark or try and register that trademark.
Providing the information above will not waive the trademark owners rights to take legal action against you. The information above provides the legal counsel and the trademark owner the information to make a decision of what to do next. Most trademark owners prefer to settle out of court. It is common that trademark owners request that you sign an agreement that states you acknowledge what you did, that the statements you made are accurate, and if you are caught lying or ever sell more products with the trademark that they will take legal action against you.
Along with the agreement, the trademark owner will often request you pay them the profits you made from selling their trademarked design and/or additional penalty fees. Even if you have only sold a few t-shirts with an infringing design the requested payment amount is frequently from $1000-$20,000. If you have potentially infringed on a trademark you have a choice to make. Your options are to pay the amount they request for damages, attempt to negotiate a different damages payment or take the chance the trademark owner will take you to court in their state which will cost you at minimum $10K to get started. The amount required to defend yourself can get very expensive and if you lose you, it is likely that you will need to pay the trademark owners legal fees plus whatever damages were assigned.
There are lots of grey areas in trademark/copyright law and unfortunately it isn’t always about being right or wrong. If you don’t have the time, money or resources to fight a trademark/copyright accusation your best bet is to pay the requested damages amount to avoid having to go to court.
How to get started researching legality t-shirt design
Trademark: In the U.S. search USPTO Trademark Electronic Search System (TESS)
Copyright: Visit the U.S. Copyright Office.
Consult an attorney: There are lots of attorneys who specializes in intellectual property if you need something specific reviewed but keep in mind it can be very expensive and many times the answers you will get won't be black and white. The answers will be something like "You might be okay", "There is always risk".
Oh and we aren't attorneys! So this is just information to help you on your journey of the legal issues around t-shirt design. GOT FEEDBACK? Leave it as a comment below.