I sit here on a Saturday afternoon watching college football, my favorite thing to do (besides crafting). The only bittersweet thing is that my son is no longer playing as he graduated last spring. I’ve made a TON of spirit items over the years and will be sharing some of those projects with you this fall. Since that always brings up the question of copyright and trademark, I want to share some info on that with you before I begin showing you the things I’ve made.
Note: This post may contain affiliate links. That means if you click the link and purchase something, I may receive a small commission. This helps me to be able to keep my business going and provide more tutorials. All opinions expressed are my own and are not tied to any compensation.
The terms
First of all, let’s clear up the confusion of the terms. According to the U.S. Copyright Office,
A copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
Copyright
We all know a published book is copyrighted. Legally, you can’t copy it without permission. You can’t take the ideas and use them as you own. We all remember that term from school — plagiarism.
But did you know this post is copyrighted as well? It doesn’t take any official process to copyright something, as the U.S. Copyright office states,
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Since I wrote this post on my computer, that’s a tangible form even before I publish it on the internet.
Patent
You can patent something that’s a unique physical invention or process. It offers a new way of doing something or solves a problem in a new way.
If you have a patent on something, no one else can make, use, sell or import it for the length of time you hold the patent (typically 20 years) unless you give them permission. It gives you the advantage to be the first one to make money off of the item before everyone else. You get that right in exchange for a detailed public disclosure of the invention. At the end of the term of the patent, others can begin making and selling similar items based on your design or method.
I can’t register a patent on a t-shirt I make. That’s not a new invention, even though I might be using a unique design on it. But had I been the person who created a heat press, I could patent that. Or if I had invented the chemical that removes HTV from a shirt, I could have applied for a patent on that. Many medicines start under patent, which is why they are so expensive initially. The manufacturer is trying to maximize the profits of their research. After the end of the patent period you get generics that are less expensive, because the manufacturer has had to disclose the recipe and competition drives the price down.
Trademark
Trademarks are what we are most concerned with as crafters, because those are taken on images and designs. It can be an image, a made up word or a unique phrase. You can’t trademark a common symbol or word. For instance, you can’t take a crescent moon and register it as your trademark. But if you combine it with a boy with a fishing pole, you can (Dreamworks). You can’t trademark the number 7 or the word “eleven,” but you can trademark “7 Eleven.” The word “Pinterest” is a made-up word, so it can be trademarked.
You can register a trademark at the state and federal levels, which best protects your creation. But believe it or not, a trademark does not always need to be registered for the owner to prevent others from using it or from using a confusingly similar mark. Owners of unregistered trademarks have legal rights within the geographic areas in which they operate. These are sometimes called “common law” trademarks and are protected by state-based laws regarding unfair competition. If someone attracts customers, then it is unfair for someone else to falsely pass off products or services with a similar name or logo.
So can you use trademarked images?
That’s the big question. There are some ways you can use trademarked items, some ways you cannot. Any crafter needs to understand this — not just those who sell their items. Let’s talk through some key points about using trademarked images, for both commercial and personal use.
Licensing
All schools have names, mascots and logos, from elementary through university. Those were created for them by an artist and may be subject to legal protection against your using them for your own purposes because they are probably trademarked. In order to sell something with a trademarked image or word, you need their express permission and often a license. You could be subject to a fine if you don’t have that. The higher up the food chain you go, the bigger the risks and penalties. For example, selling a shirt with a Disney character or NFL mascot would incur a much bigger fine than one with the elementary school’s logo.
Although it’s very expensive and difficult-to-impossible to get licensed as a seller of products for companies like Disney, schools and colleges are easier and less expensive. For example, if I wanted to sell items with my son’s college mascot on it, I could get a license for $250-500 and it’s a pretty easy process. At a high school, it may be a matter only of talking to the school office.
When in doubt, you can use a generic image like a football or trumpet. But ONLY one for which you have a license. That means either you designed it yourself (NOT through tracing) or purchased a commercial license.
Bottom line: You need a license or permission to sell items with the trademarked image or words.
Likelihood of confusion
You can even get into trouble by using a similar, though not exact, image or wording. United States law allows the holders of federally registered trademarks to sue others who use those marks without permission, when the use in question causes a “likelihood of confusion” to actual or potential customers. That’s like taking the Starbucks logo, creating one that looks so much like it that someone could mistake it for an official one from the company, and using that on coffee cups you sell.
Likewise, you couldn’t advertise your items as made by Diznee. Although it’s not the same spelling, it’s a violation because someone who doesn’t spell well might not know that’s not really the Disney company.
But using a similar design in a way such that it is obviously a parody is fine. That’s how folks could potentially sell the cups with decals that are similar to the Starbucks logo but are a body builder instead of the mermaid. Since a potential customer would probably not confuse that with the actual image, you aren’t stealing a customer who would otherwise buy the same type of coffee cup from Starbucks.
Bottom line: It can’t be so similar that it’s confusing, unless it’s obviously a parody.
Functional Use
If you are using the mark to do something other than inform the public about the source of goods or services, then your use of the trademarked name or image is “functional use.” You aren’t using it to sell something or benefit financially, but just to state an opinion. I can make a shirt with a logo of my son’s team to wear myself, because I’m just saying, “Hey, I’m a fan of this team.” I’m not saying, “I’m an officially licensed seller of t-shirts like this” and I’m not using it to advertise my business.
Here’s the next big question: Can you make something with a trademarked image to GIVE to someone else? That can be a bit of a gray area. Technically, that could constitute a trademark infringement. A company probably isn’t going to come after you for it. But don’t think you can skirt the law by “giving away” a ton of items with a trademarked logo but gaining compensation in some other way, or even without any. If you are making a project with a trademarked image or slogan, keep it for yourself or just a couple of friends.
Bottom line: You can use the trademarked image for a personal use item.
Fair Use
Nominative
Have you noticed that I’ve used trademarked names and mottos in this post? That’s okay, because I’m not using it to gain a profit. I’m only using their trademarked names to describe or give information about those companies. I do it in every post when I mention Silhouette America. I can use the name Disney instead of saying, “The company that makes animated movies and has a mouse as its main character.” If I were comparing my brand to someone else’s, I can use their name in my advertising. For example, “Our shirts are made of 100% cotton, not a 50/50 blend like XYZ company uses.”
I could even include a copy of a company’s logo if I needed to do that in order to prove my point. For example, have you ever noticed that in the FedEx logo, the space between the second “e” and the “x” forms an arrow? If you didn’t know that, you’re probably searching for that image now. I could add a snip of their logo so that you could see it right here to better understand what I’m describing.
None of those things implies that those companies sponsored my post, or that I’m associated with their company, or that they are endorsing my website just because their name or logo is on here. That’s called “nominative fair use.”
Bottom line: It’s fair to use a trademarked item as an example of something you’re describing.
Descriptive
The other type of fair use is descriptive. I could use the phrase “seven-eleven” if I were describing someone’s height, even in an advertisement for my products. I could say, “T-shirts for guys up to 7-11.” I’m using it to describe an actual attribute of my t-shirts without infringing on the rights of a convenience store. And it’s something we’d say in normal, everyday language. If I made a new cheese cracker, I could use in my advertising a motto like, “We use real cheese — it’s good for you” without infringing on the trademark of Cheez-Its.
Bottom line: It’s okay to use a trademarked name as long as it’s part of normal speech and not intended to confuse.
What constitutes a “geographical area” in common law trademark?
That’s a great question with no clear answer. It depends on the reach of the original user of the image or wording. Particularly in this age of the internet, that “geographical area” could even be Etsy or a Facebook selling page.
Bottom line: When in doubt, back out. It’s just not worth it.
This isn’t legal advice
I’m not a lawyer, and I don’t even play one on TV. I’ve just given an overview of the issue to the best of my understanding. If you have a crafting business, it’s well worth your time and money to get expert legal advice if you have any questions. At the very least, you need to follow my friend Christine on her blog Cutting for Business. She’s on a break right now as her husband is battling cancer, but she is a SUPER resource and has lots of articles on using your Silhouette for a business.
Okay, now that that’s over with, I can get on to showing you some of the spirit wear I’ve made. Keep an eye out for that in the coming days.
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