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Fair Use and Free Art: Misconceptions about Copyright - For Customers

By Erich Campbell, on February 24th, 2012

(This is an edited version of an article that appeared on my blog for Stitches Magazine, redirected toward customer education. – EC)

Copyright is a sticky subject

We often encounter requests to reproduce copyrighted images in our trade, and for flagrant violations (for example, images featuring widely-known characters, logos and mascots of all sorts) most customers understand that we can be opening ourselves up to lawsuits, and are understanding when we turn down the job and offer to help them redesign their image, but when we are confronted with more subtle questions of copyright, we often come up against the same common misconceptions, ones which, I hope, this post will help to dispel.
First, a disclaimer: I am not a lawyer, and nothing in this article can be considered proper legal advice – the following is for informational purposes only. If you have a serious question, please consult a legal professional. I do however have lots of experience helping our customers find ways to get the image they want on, the garment they want without breaking the law. Getting this right before you decide on a design for your garment will save you a tremendous amount of hassle in the long run.
Misconception #1: If an image doesn’t have a ‘circle c’ on it, it hasn’t been copyrighted. This is entirely false; copyright is automatic – it attaches to a work as soon as the original is created, and the creator doesn’t need to ‘file’ for copyright. If someone created it, and he or she hasn’t been dead for 70 years, that work is under copyright. There are exceptions, certainly. Some people expressly place their works into the public domain (this doesn’t just mean they display them in public, mind you – it means they release their rights to the public) or use a Creative Commons license that expressly outlines what rights that you, as a consumer of the creation, have. A common version of that license allows for work to be reproduced or altered provided it appears with attribution and is used for noncommercial purposes, so even then it’s not necessarily freely available for most purposes that we decorators would need. Just because it appears on the Internet, even if there is no attribution, doesn’t mean anyone can use it.
Misconception #2: If I alter the work a certain amount (6 changes, 60%, etc.) it’s no longer under copyright. Once again, false – this violates one of the expressed exclusive rights of creators. The copyright owner alone has these four rights spelled out in the law: to reproduce the copyrighted work, to display the copyrighted work publicly, to prepare derivative works based on the copyrighted work, and to distribute copies of the copyrighted work to the public. These sort of ‘magic formulas’ to avoid infringement all leave you open to violating that third right to create derivative works. Though there is a stipulation for transformative work – this requires that the new image/derivation you create no longer resembles the original – this isn’t something that a few color tweaks or a percentage of stylistic changes can help you avoid. This misconception is battled with a simple rule of thumb: If you hope that the popularity or style of the original work might fuel customer demand for the new image based on it, you can’t use it – you would be capitalizing on the original creation. There is room to argue if the piece is satirical or parodic, but you will very likely find that your apparel decoration shop won’t risk a lawsuit to print it, particularly if the copyright holder is a company notorious for suing over infringement.
Misconception #3: As long as I don’t use the entire image, it’s ‘fair use.’ Not true in the slightest – though you may have more chance of arguing for fair use if you don’t reproduce the entirety of an image, there are spelled-out guidelines in the law that you have to meet to qualify for fair use, and our commercial interests boot us right out of the equation. The four factors that determine fair use are the purpose and character of the use (i.e. is it commercial or for nonprofit educational purposes?); the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use on the potential market for or value of the copyrighted work. Commercially reproducing an image on a garment immediately brings us afoul of the first and fourth factors, regardless of how much of the source is involved.
These rules are difficult at times to untangle, and in a digital age they can seem archaic, but there is something to be said for protecting the rights of our creative citizens. You wouldn’t want your competitor to steal your company logo and confuse your customers, right? We should rightly attempt to secure permission from those from whom we would take our inspiration. Besides, when you are trying to create an image that stands apart from the rest, copying something that’s already in the mix won’t get you very far. Believe me, though it’s tempting to piggyback on the popularity of a good thing, we’re out here trying to protect you, not to destroy your great logo concept. You may find a decorator willing to reproduce a dangerous image, but the ultimate risk also falls to you. Even if you get away with infringement, it only takes one cease and desist letter to require you to recreate all of your assets; new letter head, new apparel, new signage, and all after you’ve already built up recognition of your brand. Don’t take the risk- respect creators’ rights. We’ll be here to help you create the original image that showcases your vision.