Tutor Tanith
 **Remember, nothing on this page is legal advice to you.It is general information and may not apply to your circumstances. It also may not be up-to-date. Use it to learn the issues involved, not to make important decisions.**

Legal basics for print on demand design contributors.

Copyright

For simplicity.

Most images you find on the Internet are not legal for use regardless of whether it is for your web site, a product for sale, or something just for yourself. It is also not legal to find an image and use it as a base for your own image. There is no such thing as making an image legal by changing it some x-percent. The right to modify an image belongs to the copyright owner. The copyright owner is usually the person who created the photograph, image, writing etc. It is your responsibility to determine who owns the image, and to get written permission to use it. Never trust "free image" sites who do not identify the author of the image.

There are different rules for different uses. Copyright applies to all uses but there are modifications depending upon how the material is used, and why. Keep in in mind that things like "fair use" are defenses to infringement, they don't mean no infringement has occurred. The defenses, if properly met, can relieve one of liability for the infringement. Commercial use is different from commentary. Parody gets a different level of protection than satire.

Using an image as an enhancement (as in a newsletter) is different from when the image is the critical element to a product. POD customers aren't buying just a t-shirt or a mug, they are buying a product enhanced with a particular image. Without that image there would be no premium price for the product. That is what they mean when they say you can't use the image where the image is "the primary value of the product or service."

There is a difference between rights in the image, and rights in the subject matter. Copyright relates to the image. The subject matter of the image might be separately protected. For example, someone takes a photo of Coca-Cola corporate headquarters with a focus on the Coca-Cola sign. They own the copyright for the photo. They can give others permission to use the image. But they don't own the Coca-Cola trademark so the person using the image is still restricted according to trademark protection. Similarly if the image includes a recognizable person that person has subject matter rights of publicity and privacy regardless of whatever rights you might hold to the image. Avoiding issues of content rights is easy enough - avoid anything is recognizable as relating to a particular brand, avoid anything with recognizable human faces and avoid even photos of art and other copyrighted images.

Royalty Free Image - means you do not pay per use. It might be free, or it might be a flat fee. Use is often restricted. In most cases "royalty free" images are intended for use on things like web pages, newsletters etc. but not revenue generating items (greeting cards, posters, t-shirts ...). If you were paying a royalty you would have to keep track of how many items were printed and pay on a per item basis. That is what you avoid when an image is royalty free. Never assume that "Royalty Free" images are allowed on items you are selling. Even if it says they can be used on t-shirts, buttons, cards etc make sure that the image rights are clear that you can sell the items with the images on them. If the agreement is not clear, ASK the image seller before proceeding. You want to be sure you can identify who is selling the image in case there is a problem with the image rights.

Copyright Free Image - means there is no image owner. That is not the same as not being able to identify the image owner. Just because the image owner is "unknown" does NOT mean the image can be used. A truly copyright free image can be used without paying anything and without commercial / noncommercial type restrictions as to the image. Also called "public domain".

In general images become public domain when (1) they do not meet the requirements for copyright protection (2) the image creator expressly releases to the public domain (3) the copyright expires and is not renewed (4) certain images created by US Government employees (does not include local governments, states or cities). Note that still may not take care of restrictions because of the subject matter.

While many sources on public domain make the flat statement that "works published before 1923 are in the public domain" that does not say everything it needs to say. Most people equate creation with publication, but they are legally distinct and it matters. Publication is more than just displaying a work or making it viewable by the public. If the author is unknown and the work was neither published (legal definition) nor registered then copyright protection exists for as long as 120 years after creation. See also The Tale of One Bunny, Copyright Statements, & Public Domain: A Cautionary Tail

Subject matter, matters. What is in the image makes a difference. There are more rights than just copyright. Trademark and rights of privacy and publicity also apply. A photograph of a copyrighted work requires permission. While works created by employees of the United States Government are not copyrightable that does not mean everything appearing on a US government site is available. Frequently it is protected. Something does not become public domain just because the government paid for it. http://en.wikipedia.org/wiki/Work_of_the_United_States_Government Certain logos and seals, especially those of the military, also have legal protection that is separate from trademark and copyright but with similar effect.

Does the image source claim that its images are subject to any license (including Creative Commons)? If so, then that source is claiming that the image is not public domain. If you believe that the image is public domain then find another reliable source that does not claim your use is under license, or make sure you have an attorney on retainer.

Creative Commons Image - is not an entire release of copyright for that image but use is free and relatively unrestricted. Often there is a restriction against commercial use, but that means making money from the image (greeting cards, posters, t-shirts ...). So in most cases Creative Commons licensed images are OK to use for corporate newsletters, web sites etc. without payment. Very often there is a restriction against commercial use - which would include using the images for print on demand products offered for sale.

For corporate web sites and newsletters you can look for Creative Commons license or public domain (copyright free). When you are looking you will see that getting free / unrestricted photos is easier than finding drawn images (clip art - so called because they used to come in books and you would copy them then literally cut or clip them from the paper to be pasted to your document mock-up), but there are still tens of thousands of available drawn images.

Craft items e.g. rubber stamps, printed fabric, die cut, embossers etc - a common question is whether crafts items such as rubber stamps, embossers and the like can be used as the basis for a design that is then uploaded in the ordinary manner to be applied to POD greeting cards, t-shirts and similar products for sale. It is easy to assume that since these items were intended to be used to create art work that selling the resulting art work would be legal. Alas it is not so simple. The companies producing these products start with the position that they are intended only for personal, non-commercial use, and that any other use is a violation of their copyright. Most then tack on what they call an "angel policy" that permits some form of commercial use in a very limited way. The terms are different from one seller to another but nearly all require that the art work be individually applied. That, and other typical restrictions, means that you probably cannot legally create your POD art using those tools. Do a general internet search on the phrase "angel policy" copyright to see examples of the licensing terms.

Fonts

Copyright law regarding fonts is different in the USA than in many other countries. Under US copyright law the forms of the standard characters (letters, numbers, punctuation) are generally not subject to copyright. If you type them out and make them into an image there is usually not an issue of copyright for the use of those standard characters. There might be a contract issue of whether you used the font software according to the license. This discussion is generally about US law.

Legalities relating to fonts are confusing for most folks. The discussions often don't make it clear whether they are talking about

  • standard characters used to form words or create a design (typeface) or
  • the font file which necessary to treat the characters as a "font" rather than a set of individual images (font).

There is a difference between a typeface (the characters themselves) and the software to deliver it (the font). Most people, however, use the term "font" to include both.

To try to distinguish these two things let me try an odd scenario. I obtain a font (the software file) and install it. I type out all the letters, numbers and standard punctuation. I make the characters very large and create an image out of it so that those characters are now just shapes. I send the image file to you. You copy/paste, cut/paste, size, and manipulate those characters to create a design.

There is no probably copyright issue for you, those forms are not protected under US Copyright law. You did not obtain, install or use the font file that is protected by US Copyright law. And you are not a party to the licensing contract. I *might* have a legal issue, but it would be under contract law, not copyright. I might have violated the terms of the license regarding installing and using that font file.

Most font license terms don't actually cover such a scenario but an increasing number of them do. Usually if commercial use is addressed it is by terms that restrict that use. It is less common for a license to explicitly grant commercial use. In general, for ordinary characters, if the license does not explicitly identify the kind of use (personal, non-profit, commercial etc) then the terms would apply for all uses. (Naturally there are possible exceptions, what is ever definite about the law?)

Bottom line, if you use the fonts for standard characters that come with your editing program inside that same editing program then it is unlikely that you will run into legal issues in creating products for sale. (Of course there could be exceptions, review the program's license). Font objects that are not standard characters might be subject to copyright. If you obtain font files outside of a program take extra care to ensure that the license includes the rights to use that font file to product the characters to create a design on products for sale. In general fonts that you pay for will include the rights needed to use them to create products for sale.

Trademark

Trademarks are often common words and phrases. It is almost easier to find trademarks that are common words than are not - Mustang, Pinto, Sun, Oracle, Apple, Total, Life, McDonald's, Wendy's, "Life is Good" ... the list of common words and phrases that serve as trademarks go into at least the hundreds of thousands. Trademark does not give exclusive use to a word or phrase. It protects against a use that might confuse someone as to a source of a product. That, however, leads to a fuzzy area and the PODs don't want to get involved in deciding when a use crosses the line. So if a trademark holder complains the stuff gets pulled until and unless the shop keeper and trademark holder work it out.

Trademark protects consumers by ensuring that they can know the source of the goods and services they buy. Trademark owners protect the integrity of their mark by ensuring that consumers don't think that the mark owner is the source of shoddy or unfit products. Whether something is a violation of trademark involves all the surrounding circumstances. So it is entirely possible that you could get sued not for the design but for the marketing surrounding the design, the text, the title or the search tags. While parody is a protected form of speech the line between parody and uses that risk a law suit are not clear, well defined or obvious. If you are considering using a brand name or some recognizable product in a design for sale make sure you understand the risks.

If you want to keep yourself out of trouble the guideline is "Does my marketing, or the design itself, make people think of a particular product, movie, tv show or otherwise specifically identified producer of a product or service." If it does, then you are risking trademark infringement. If you want to make money marketing something related to a TV show, movie, performer, sports figure etc. you must make sure you have easy and rapid access to an attorney specializing in intellectual property law. Newspapers, magazines and performers who do parodies get sued regularly. And if you choose to enter into the arena of basing your sales on the products of others then you will too. You might win, you might lose, but if you don't have solid legal knowledge in your corner you are risking everything.

Trademark does not prevent you from using a particular phrase or word. It prevents you from using a particular phrase or word in a specific manner. The extent to which you are limited depends on the specific mark. They are not equal. In simple terms a critical factor is recognition, the more recognizable the mark the wider the protection. But the recognition factor is also evaluated in context. It is complicated and thus most PODs will choose to pull a product rather than risk a legal battle.

When choosing our own "brands" - the name by which our customers will know that the products come from us - we need to at least check the Federal Trademark registration database TESS http://www.uspto.gov/ebc/tess/index.html and the major search engines to see if what we want to use is already being used as a brand name in a similar field of products. It isn't totally sufficient, but it is a reasonable stab at it.

Rights of Publicity / Privacy

Rights of publicity and privacy apply to uses of a person's image, likeness (e.g. cartoon), name, nicknames and other information that identifies a specific individual. Trying to sell a product using this identifying information is at least risky. That would include not only the design itself but the marketing of the design or product.

Protecting Your Rights

Do you think that you are wrongly accused of infringement? Are you seeing red because someone is using your work? The first step is to make sure of the situation, and make sure you understand the law. The Law Links below will help with that. The two best sites to help you either respond to a demand letter or to make your own are:

  1. Plagiarism Today
  2. Lumen Database (was Chilling Effects Clearinghouse)

These two sites have different perspectives - one from the side of protecting against infringement, the other from the side of protecting against unfair accusation of infringement. It does not matter which perspective you have at this moment. Go through them both, thoroughly, so that you get the best whole picture. Also review the article on stolen images. If you don't like how the law is, then don't just complain about it, get involved in solutions.

Law Links and Articles

Potential free image sources

Comment on NASA Images

While many NASA images are public domain it goes too far to assume that everything on the site is available. NASA logos, insignia and emblems are protected. Images from the Soviet/Russian space agency, and other non-USA space agencies, are not necessarily in the public domain. Unless expressly stated otherwise assume that materials from the Hubble Space Telescope are copyrighted.
SOHO probe images are copyrighted.

Shop Marketing Cautions

Some marketing methods can get you into legal trouble if you don't know what you are doing: promises to donate to charity, contests and giveways and similar require caution. The more in the shop marketing cautions article.

 

Legal basics for print on demand design contributors.

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