Copyright in Print On Demand Business: Can I Print That?
Art drives commerce and culture, and for this reason, the drafters of The U.S. Constitution charged Congress with protecting the rights of creators in their creations. So the Lanham Act was enacted, which established federal copyright protection for the works of our nation’s creators and artists. Copyright law protects the owner of the work. This is why merchants operating in today’s eCommerce industry who utilize print-on-demand services should be fully aware of the rights afforded to owners of copyrights so as not to find themselves in costly litigation for an infringement that could have easily been avoided.
An Introduction: What is Copyright exactly?
To understand copyright, it is best to begin with what is required. The federal government provides copyright protection for an original work of authorship that is fixed in a tangible medium of expression. How original must the work be? All that is required is a modicum of originality. In other words, as soon as anyone creates anything, and it is fixed in a tangible form (like a canvas, book, musical recording, and so on), so long as there is just a little bit of originality, that creation—or work—could be afforded copyright protection.
Copyright protection extends to virtually all original works of art, but not everything that is created may be copyrighted. Facts, for instance, are not protected by copyright. The fact that George Washington was the first president of the United States of America is a well-established and widely disseminated fact. Congress decided it might be better for everyone if we all had equal access to, as well as the right to use and distribute, facts. Compiling a book of various facts could be granted copyright protection so long as it is original in its composition, but the underlying elements of the work, the facts themselves, are not afforded protection.
Standard shapes, likewise, are not afforded copyright protection. Fixing a triangle or star shape to a tangible medium does not earn copyright protection on its own.
The relevance of Copyright for your Online Business
Great, we’ve got the basics down. Pretty simple, right? Now you might be wondering, “Why should I worry about this? I sell t-shirts online, I’m not a lawyer.” Okay, maybe you sell other things, like cute baby beanies or adorable pet bandanas –in any case, knowing your way around copyright laws is a must during your eCommerce journey, whether you’re a seller or an artist.
Let’s say Gerry (they/them) has a business venture selling graphic t-shirts through their website online by using a print-on-demand service, such as Awkward Styles. While Gerry’s education and experience in business is excellent, they have no idea what design, emblem, or graphic to put on the t-shirts. After hours of scrolling through internet images, Gerry settled upon an image created by an artist by the name of Alex (she/her).
However, before contacting Alex, Gerry took a screenshot, expanded the image, did some photoshop touch-ups, and posted the image appearing on a t-shirt on their website. When sales began to come in, Gerry submitted to the POD service the image and number of orders. After the POD’s compliance team reviewed the order, however, Gerry was promptly informed that their order could not be fulfilled due to the potential for copyright infringement.
In order to understand why it was flagged, consider the flip side of the situation from Alex’s point of view, the artist who created the image that Gerry almost infringed upon. She created this design by drawing triangles of different sizes on a large canvas using various colors and shadowed borders. She creates foreground and background dimensions and when she is finished painting, she contemplates the abstract work before her.
The painting, the work as a whole, is original in that it was Alex alone who arranged the work in the manner that creates the expression which it invokes. The medium upon which it has been fixed is tangible—that is, the work is placed on a large canvas by the use of paint.
Alex has a copyright in the painting since it is an original work that has been fixed to a tangible medium of expression. Although the copyrighted work consists of triangles, Alex does not have a copyright in the shape of a triangle, but in the whole work as she created it.
Once the creator has finished the task of creating the original work, they can consult an intellectual property attorney to advise on their rights and options and to assist them in registering the copyright for the work. Registering a copyright can ensure that the creator is entitled to all the rights that the copyright affords. It will also be essential in establishing their ownership of the original work.
The result of registering the copyright enables the copyright owner to enforce the exclusive rights protected under the copyright statute, also known as the Lanham Act and would enable the owner to expand the monetary value of the work. So, for example, if Alex has registered her design for copyright, Gerry cannot use it on his products without Alex’s consent.
As a merchant, you can obtain the artist’s consent by ]simply reaching out and asking the artist for permission. Generally, the artist grants permission on the condition you purchase a license for a fee. Sometimes, but not always, the artist will also seek royalty under the terms of the license.
Licensing contracts can be very complex, so contacting an attorney who specializes in this area would be the best way to go. Artists typically use a standard form that has already provided them the benefit of the contract. And the license will usually be non-exclusive and grants only limited use. A merchant’s license to print a work on t-shirts won’t generally allow them to also print the work on a large, framed poster and feature it in an art gallery.
The license will typically only grant permission for a single type of use. This is why artists register their creations because it establishes proof of their ownership in the work, which affords them a variety of rights, for all variety of uses, attached to that work.
How Copyright Protection Works
Registering something for copyright protection helps ensure that as a creator, you are credited and compensated fairly for the work you did. The rights afforded to owners of copyrights include:
Artists with copyright protection of their works are entitled to the exclusive right to make copies. For instance, if Alex re-printed the image of her Triangle painting on posters that are framed and sold through various retail stores and websites, they are free to do so. But any other merchant must obtain a license from Alex as the owner of the work. For instance, Alex may allow Gerry to have the non-exclusive right to print—through their POD service, such as Awkward Styles—and sell the framed posters at terms that are favorable to Alex. Both artist and vendor should seek a lawyer to assist in determining each party’s rights under such licensing agreements.
Copyright protection also provides the owner with the exclusive right to adapt the work into new works. Alex might decide to make 3D sculptural representations of the Triangle painting and sell the sculptures as paperweights on her website. Similarly, Gerry can enter a licensing agreement to produce such 3D sculptures.
Public Distribution Rights
The owner of a copyright has the exclusive right to distribute the work to the public. Alex may sell the Triangle Painting itself, the re-printed posters, and the 3D sculptures all from her own website without needing to obtain permission since she owns the copyright in the work.
In order for Gerry to be capable of legally selling t-shirts that bear the image of the Triangle painting by Alex, they must first obtain a license from the owner of the copyright that would permit them to distribute the work to the public.
Public Display right
Alex alone has the exclusive right to display the Triangle painting to the public, such as at a gallery or museum. Notice, however, because the physical painting is still a tangible property, if Alex were to sell the painting to a rich art collector, she is unable to prevent the rich art collector from displaying the newly acquired property wherever the rich art collector would so please. However, Alex in such an instance would retain an excellent attorney to handle this specific type of transaction in order to retain ownership in the copyright of the work despite selling the physical painting. This would allow Alex to make printed copies on posters and t-shirts of the Triangle painting so that she may continue to profit from her ownership in the work.
Anti-circumvention and copyright management information rights
For some works, the need to reduce counterfeiting requires technological security. A good example is when an author publishes an e-book and distributes it on their website. Generally, the author would transfer the book with encryption software upon each sale. Therefore, the copyright owner would have a statutory right of action against any who would hack, or otherwise circumvent that security system, to infringe on the work by selling unauthorized copies.
Statutory Remedy for Infringement
Always remember: copyright protection affords the owner of the copyright with various statutory remedies against any who might infringe on the copyright. For instance, if a counterfeiter made a copy of Alex’s Triangle painting and began printing T-shirts, Alex will have the right to bring an action against the counterfeiter in order to compensate for the infringement of the copyright owner’s rights—which may lead to statutory damages against the infringer.
The Do’s and Don’ts of Print-On-Demand Copyright
It goes without saying that if you created the design, you’re good to go! But we also know that it’s not always that simple. Sometimes we are inspired by artwork made by someone else. When that happens, no worries, we’ve got you covered. Here’s a quick guide to what you can use for your online store, and what you should avoid.
What can I print?
You can freely print stock photos and standard shapes, as well as any of your original work. Many merchants hire artists as employees so that everything that the artist creates for the company is owned by the company under the work-made-for-hire doctrine.
You can also use famous works that both are and aren’t in the public domain. However, if you do decide to use famous works that are not in the public domain, be sure to do so with substantial modifications. Be careful, though: it is a wobbly tightrope when establishing whether a modification of an existing work or design is fair use or infringement, because, as mentioned above, the artist has the exclusive right to adapt the copyright into derivative works. Parody of an existing copyrighted work is generally allowed, but the artist being parodied may take measures to protect their works against infringement nonetheless.
What can I not print?
This is more straightforward. It’s best to avoid the type of works listed below to ensure that you aren’t infringing on any copyrighted material:
- Lyrics or quotes that you didn’t write
- Images from movies, tv, or the internet that you didn’t create
- Logos that you didn’t create
- Famous people or characters, unless modified for the sake of parody or comment
- Any graphic art you didn’t create
In conclusion, Alex, or any who creates an original work, should seek the guidance of a knowledgeable attorney to retain the most benefit from the rights which copyright protection affords. Likewise, Gerry must no longer rely on their own web research and seek the guidance of an attorney in order to secure the proper licensing rights in the image they want to use for the t-shirts they are selling and avoid the penalties of copyright infringement.
This article is meant purely for educational purposes. It contains only general information about complex legal issues. It is not legal advice, and should not be treated as such. Therefore, no person should reasonably rely on the information provided in this article as an alternative to professional legal advice. Please consult a licensed attorney to answer your specific questions and to address your particular legal matters.
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