Let’s say you just heard an incredible song and you loved it so much that you want to print a t-shirt with the lyrics on it right away. You start preparing your print files, but then you’re struck with an important question: am I breaking any laws?
We get a lot of questions from customers about intellectual property, specifically—printing copyrighted and trademarked materials. Usually, a customer has a great idea they know will be a hit, but they’re not sure if it’s legal to print. In this blog, I’ll go over some rules to help figure that out.
Copyrights and trademarks are territorial. Unless you sell your goods to the US customers only, you should take into account other jurisdictions you target your goods at as well.
Before I continue, I’d like to point out that you are solely responsible for the content that you post and Printful doesn’t assume liability for copyright and trademark infringements. And this blog post should not serve as legal advice—consulting a copyright or trademark attorney is always the best route if you have questions about your products and intellectual property law.
What is intellectual property?
Intellectual property (IP) is a category of property that deals with the creations of the human mind. Literary and artistic works, inventions, designs, symbols, names, and images used in commerce are all examples of intellectual property.
The reason intellectual property protection is so crucial is that it allows the rightful owner or author to reap the full benefits of their invention or artwork. If you’re an artist who makes a living with your work, you can imagine how devastating it is to have your artwork stolen and reproduced.
The most well-known types of intellectual property are copyright, patents, trademarks, and trade secrets. Let’s take a closer look at copyright and trademarks since this is the main type of IP that needs to be considered when creating designs for your print-on-demand products.
What’s the difference between copyright and trademark?
Copyright is a type of intellectual property geared toward literary and artistic works. Works covered by copyright range from paintings, photographs, books, music, videos to technical drawings, maps, advertisements, software, databases, etc.
This photo is Printful’s intellectual property and is protected by copyright
A trademark is a type of intellectual property geared toward items that help define a brand, such as company name, logo, or symbols, and that help distinguish one entity from another.
The Champion logo is Champion’s intellectual property and is protected by trademark
For example, Printful would copyright photos and videos it created, and trademark its name and logo.
Defending copyright is different from defending a trademark. If you require legal advice on a copyright or trademark issue, make sure the attorney you choose understands your needs.
The term “copyright” is also its meaning: the author’s right to the copy of their work. In this context, a copy is a reproduction of any visual, written, or audible piece of intellectual property—anything written, photographed, drawn, painted, etc.
The US enacted its first copyright law in 1790. The US copyright law currently in effect was rewritten in 1976 and has been amended several times. This law defends the monetary value of artwork and inventions, and grants authors and artists these rights, among others:
to make and sell copies of their works,
to create derivative works,
to perform or display their works to the public.
Note that the law doesn’t defend ideas that are still in the creator’s mind. The work must be original and exist in a physical form (e.g. paper, film, or recording). It also needs to be the result of some creative effort; the exact amount of creative effort is open to interpretation.
Copyright comes into effect immediately after the work is published (definitions of what “published” means varies).
For works first published before March 1, 1989, the copyright owner was required to place a written notice on all publicly distributed copies of their work. A copyright notice is a short line of text that lets the public know that the work is protected by copyright law and is not to be copied. This notice is no longer necessary, but it’s best to have it in case the creator needs to defend their intellectual property in court.
The rule of thumb is to never use copyrighted or trademarked material without the permission of their owner, but, as always, there are exceptions, and this is where the Fair Use doctrine comes into play.
The Fair Use doctrine
These four factors determine whether fair use applies to a case:
The purpose and character of the use of the copyrighted material. It’s usually acceptable to use copyrighted material for educational purposes, research, parody, or commentary. However, it will likely not be considered fair if it’s for commercial gain.
The nature of the copyrighted work. The more creative the work, the more heavily it’s protected under copyright. Statistics and facts aren’t protected under copyright and can be used without permission if you cite the source. The creation of artwork, novels, songs, poems, movies, or songs involves a lot more creative effort, and copying this type of material is less likely to support a claim of fair use than using a factual work.
The amount of work that was copied. How much of the copyrighted work was used in a given case?
The effect of use on the potential market or value of the copyrighted work. If you’re selling a shirt with a Batman print, it could keep people from buying original merchandise, which would likely not be considered fair use.
There can be cases that wouldn’t qualify as copyright infringement under the Fair Use doctrine, but it depends entirely on the situation.
More often than not, transforming or using someone else’s work without getting a license doesn’t constitute fair use.
How long does the copyright and trademark protection last?
Copyright and trademarks are subject to a time limit.
The term of a US federal trademark is 10 years, with 10-year renewal terms. To confirm that the mark is in use, you have to file a proof between the 5th and 6th year of registration.
Anything published before January 1, 1924, is in the public domain, meaning it’s not protected by copyright.
Works published between 1925 and 1978 are protected for 95 years after publication unless renewed by the author.
Everything published after 1977 is protected for the duration of the author’s life and another 70 years after their death. After that, the creative work generally passes into what’s called the public domain.
Public domain works
Example of public domain artwork. Indian peafowl (Pavo Cristatus) illustrated by Charles Dessalines D’ Orbigny (1806-1876). Digitally enhanced by rawpixel
Public domain refers to creative works that are not protected by copyright, so anyone can use them in any way they’d like (while attributing the source or author of the work), including reselling or using the material to create new or updated versions without permission from the owners nor compensating them.
Please be aware that stock images may not always be free for commercial use even if the website says so. This is because anyone can upload any content to these platforms. That being said, there’s no proof whether the rightful owner of the intellectual property has authorized the third party to upload their content to these platforms and assign the “free for commercial status” for these images.
Better safe than sorry
It’s always best to err on the side of caution when it comes to copyright. When in doubt, assume that the artwork is subject to copyright.
Here are some things you can do to make sure you’re not breaking the law:
Avoid using trademarks or copyrighted material. This is a no-brainer—don’t use trademarks or material that’s copyrighted. Create original designs or use artwork from the public domain. And if you’re not sure if your idea complies with copyright or trademark law, it might be best to leave it, or speak to an attorney.
Check copyright and trademark records. If you’re unsure about whether something is copyrighted or has been registered as a trademark, check the U.S. Copyright Records and the USPTO’s trademark database.
Get permission from the owner. Get a written permission from the creator to use the copyrighted material or trademark.
Consult a legal professional. A copyright or trademark attorney is your best resource for figuring out what you need to do in your circumstances.
Make sure to go through Printful’s Acceptable Content Guidelines, too. Note that at any time Printful may review and remove content that is hateful, illegal, and that violates intellectual property rights.
Madara is a content marketer for the Printful Blog. Her background in linguistics and belief in the power of SEO come in handy when she’s creating content that inspires ecommerce store owners and helps them grow their business.
Madara is a content marketer for the Printful Blog. Her background in linguistics and belief in the power of SEO come in handy when she’s creating content that inspires ecommerce store owners and helps them grow their business.
