Hi everyone,
I decided to start a post concerning copyrights and trademarks and I sincerely hope I am not stepping out of bounds on this. There are quite a few forum threads that bring up the issue for discussion, but none that really answered the questions with clarity for me. So I went out on a limb and decided to do a great deal of research of my own, as all of you should do, and decided to share what I found along with my interpretation.
If you would prefer to just cut to the chase, go to the links I listed below and learn what you need to know.
I may be new to Zazzle, but not to creating art or the copyright and trademark laws all artists should learn and know. I am also NOT a Lawyer, so DO NOT take this as LEGAL ADVICE. I am only sharing information I dug up and my "interpretation" of that information to unravel the confusion in my own mind. Take it or leave it as you wish. I only hope it sheds light on a subject all of us, as artists, should know as well as we know the tools of our trade.
Now, before I get into my "interpretation" of the law, all of you should keep in mind that regaurdless of what the law states, or how any of us interpret it, what Zazzle will allow you to print through them is an entirely different matter. If they demonstrate they're not going to so much as argue with big industries or their Lawyers concerning copyright or trademark issues, then that is their business. If you want to argue with Zazzle about it, may I refer you to the part of their agreement and terms that states they can drop you from their website without reason. It also says you will support Zazzle in these types of matters. If they decide they are not going to print certain images, that's the end of it. If you want to print what they do not, go start your own company and print whatever you want. Then you can respond to "Cease and desist" letters in whatever manner you choose. Make sure you have access to a good Lawyer to help you deal with the legal issues of butting heads with wealthy corporations.
Speaking of, Are there any Copyright/Trademark Lawyers in the house who can clarify any issues I may have overlooked or misinterpreted?
THIS IS QUOTED FROM LAWMART.COM
http://www.lawmart.com/forms/difference.htm(Quoting for the purpose of educating others and listing the original source of information is not a violation of copyright law.)
CLOTHING ITEMS
When it comes to copyright v. trademark, we get more questions about clothing than anything else. Here are a few guidelines:
1. Anything you silk screen or otherwise display prominently on the front or back of a shirt, top, cap or hat is generally considered artwork, and therefore covered by copyright. In fact, if you send a photo of a clothing item to the U.S. Trademark Office showing your design, logo or slogan prominently displayed on the front or back, they will refuse to register it as a trademark.
2. To qualify as a trademark, your logo or slogan must be used as the brand of the clothing item itself. In other words, your logo or slogan must be used the way clothing brands are typically used and displayed on clothing, namely, sewn into a waistband, collar, hem or pocket, or applied to a label, sticker or tag, and NOT in a way that dominates the appearance of the clothing item.
3. The caveat, of course, is that when your design, logo or slogan is regarded as artwork - even though it can be protected by copyright - the protection only extends to the artistic configuration used. To put it more bluntly, if you have a slogan or name, copyright law can protect the artistic way you display it, but the text itself is NOT protected. Copyright law does not cover names, words or short phrases.
4. The only way to protect a name, word, short phrase or other text, is to register it as a trademark. But this means that you have to change the way you use the mark from an artistic display to a brand name usage.
5. Yes, it is possible to register a design, logo, name or phrase under both copyright law and trademark law, so long as you use it in two different ways and you do it consistently. Keeping the two usages of the same design or text at the same time is not an easy task, and you can end up compromising your rights under copyright or trademark, or both, very easily if you aren't careful.
(END OF QUOTE)
My "interpretation" of this and the written law (find links below) is though you can copyright "artistic usage" as a whole unto itself (ie. a design, photograph, printed artwork, poems and songs, and books), you cannot copyright the names, words, phrases or common symbols within the whole while restricting its use from everyone else. You can only copyright the artistic nature in which you "display" those names, words, phrases and symbols.
A Trademark is the signature of a company that is doing business in the marketplace whether it is a word, phrase, symbol, number or combination thereof. Trademark laws were designed to protect the "signature" of one company to make it distinguishable from others, and to prevent others from creating anything similar as to cause confusion between the two.
A "Trademark" is the "Brand name and/or image" afixed as a label or tag to the product the company is applying its signature too. For instance, N-i-k-e and the familiar checkmark are a unique trademaked name and logo of a company and their "Brand." However, they do not hold exlusive rights to the "artistic use" of a checkmark as long as it is not identical to N-i-k-e's, or used as a "Label." You can print your own "Artistic" style of a checkmark on a T-shirt or anything else. A checkmark is a commonly used symbol which cannot be copyrighted, and N-i-k-e does not have exclusive rights to restrict it's "Artistic usage" in general, only it's "Brand usage." Trademark law was created to protect "Brand usage" to distinguish one compay's logo from another, not the "artistic usage" from one artist to another. That falls under copyright law.
Also "Just do it" is a commonly used phrase that in of itself cannot be copyrighted. I heard my parents and my grandparents barking this at me on a regular basis when I was a child long before N-i-k-e "adopted" it. Even if it is legitimately trademarked and N-i-k-e were using it "within a Label," they do not hold exclusive rights to prevent "artistic usage" printed on t-shirts (or anything) by anyone else as long as you do not make reference to N-i-k-e in the process.
To the best of my knowledge, the only time you can print the Trademarked name and logo of any company without their permission is if it is done in a parody, a form of critisim, or reporting "newsworthy" material.
Another example would be FRUIT OF THE LOOM and their "cluster of fruit" image on the label. They do not hold exclusive rights to restrict the "Artistic usage" of a cluster of fruit. They do have exclusive rights to use that "artistic" design as their Trademarked label preventing other companys from applying it as a label of their own, but it does not restrict artists from printing an apple, a bannana, grapes, or even a cluster of fruit as long as it is not identical or make reference to FROOT OF THE LOOM.
"Artwork" displayed prominantly on clothing, or phrases used by a famous person in a song or movie have no Trademark legitimacy unless they use it as a "Label" on a product identifying their company actively doing business in the marketplace.
Simply printing any phrase on a t-shirt or singing it in a song, or adding it to the story within a book, does not make it a legitimate "Trademark" you can hold hostage from everyone else, you have to apply it as a label and it is only restricted from other companies using it as a label. Printing "Just do it" (or any other phrase) on the front of a T-shirt is not a "Label," and is legitimate and legal for anyone to use artistically in thier own format as long as you do not copy the "Artistic usage" or ASSOCIATE IT WITH any perticular company or person who may be using it "within their label." Don't make your version look like N-i-k-e's version.
As for photography and the rights to photograph and sell the image of a famous sports figure wearing the N-i-k-e logo within the photo, or a bad to the bone sports car at a car show, or any other photo containing a copyrighted or trademarked image, you should consult an attorney before sending it to print. The Photographers within sporting venues are usually licensed and received permission from the venue, the team, and probably the individual player, all demanding a share of the profits generated by the photographer. However, a similar photo taken in public by anyone may be sold without discretion to news organizations, but it doesn't mean you can turn it into a poster to sell on a national retail level.
Once again, This is just my "interpretation" from what I have learned. If you have questions concerning the legal right to print a design, consult a lawyer. If you are concerned whether or not Zazzle will print a "questionable design" ask the Zazzle management team through an email to get a specific "Yes you can" or "NO you may not." If they aren't willing to take the time to say yes or no, make your own calculated decision. Asking anyone on these forums who are not professional lawyers and do not speak for Zazzle management, is risky at best, and if you have a shred of doubt you're better off not doing it until you get an answer from someone who is qualified to give the answer.
Here's an idea. If you, as an artist, create designs around an image that is questionable or Zazzle will not print because of copyright and trademark issues, contact the organization who holds the copyright or trademark, tell them you are a designer and ask if they would be willing to accept submissions of your design for thier permission to sell on the open market. If you get permission, maybe Zazzle will allow it in your shop alone, while everyone else is scratching their head wondering, "why do they get away with it but I can't?" Sure they'll expect a commision, but if it opens the door to a million customers and you only get a dollar per product? Do I really need to do the math? If they say no then move on to the next design. And so on, and so forth.
Hopefully that wasn't more confusing than helpful.
Below you will find links to U.S. government agencies and the laws directly from the horses mouth. I suggest you read and study them for yourself.
Vital resources
Copyright law -
http://www.copyright.gov/title17/Refer to:
chapter 1 - sections 102, 106, 107, and 113
Chapter 2 - section 201 (still read it all)
Chapter 5 - sections 501 - 508
Chapter 13 - This chapter is about Design, However, it does not specifically state whether it is "graphic Design" of an artistic nature, or technical drawings for a mechanical device or plans for a house. I think it's for the Latter more than the former.
Trademark law -
http://www.uspto.gov/trademarks/index.jsp - Read "The Basic facts about trademarks" PDF
http://www.uspto.gov/trademarks/process/TMIN.jsp - Watch video's 1 and 6
Good luck to all of you.
