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Copyright, trademark, what's legal? Ebay?

 
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Old October 31st, 2005 Oct 31, 2005 7:22:52 AM -   #1 (permalink)
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Default Copyright, trademark, what's legal? Ebay?

Hello! I have done some research on the t.shirt forum regarding copyrighting and trademarking. I guess I am stll a little/lot confused on what I can and can't use as a design for my tshirts.

I am new to the t.shirt industry and want to make sure I am by the book. I am thinking about using ebay as a way to sell shirts and this is where my confusion started. I found many stores (not individual sellers) who sell tshirts that have band logos such as nirvana, guns and roses. T-shirts with movies such as Star Wars and tshirts that sell superhero characters (and there is nothing indicating they are an authorized dealer and licensed to sell.) Here's my question?... Is it legal to print out a picture of an actor ie... like Brad Pitt and put in on a tshirt I wish to sell or what about his name? Can I actually use a celebrity's name on a tshirt? What about show's that are on the WB? I saw several Smallville Tshirts. Is it legal to use a name of the tv show on a tshirt?

I am so confused on this issue...In the past my husband has bought tons of batman tshirts. When I look at the tshirts, the brand is hanes, but the design/logo is of Batman? When I revisted the website, I saw nothing indicating they were licensed to sell comic book character.

If it's not legal, what is the process to do so? For example, a television program. Do I need to contact the WB network in order to use a name or picture of the television show? Is this also the process with Bands? I saw a million rolling stones t.shirts. Is everyone getting permission to actually use the rollling stones name?

I would appreciate any advice and clarification. Thank you!!!!!!
 
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Old October 31st, 2005 Oct 31, 2005 7:51:41 AM -   #2 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

They are, nearly always, illegal. How long they stay up on eBay depends how militant the copy holder is, or if they're a member of eBay's Vero program.

To make such shirts legally, you need to contact the copy holder (or their publicist/agent). The chance of being licensed by a major show or personality is very, very slim. Cult bands etc may agree though.

The exception are people "who have made their image public domain". This basically means politicians, and you can go to town with them.
 
Old October 31st, 2005 Oct 31, 2005 9:18:14 AM -   #3 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by marydela
Is it legal to print out a picture of an actor ie... like Brad Pitt and put in on a tshirt I wish to sell or what about his name? Can I actually use a celebrity's name on a tshirt? What about show's that are on the WB? I saw several Smallville Tshirts. Is it legal to use a name of the tv show on a tshirt?
Some of this is pretty murky territory - I wouldn't trust anyone who simply answered "yes" unless they had a lot of degrees and I was paying them a lot of money "Yes" is always the answer we want in these cases, but "No" is the one we need to listen to.

Were you to use a celebrity photo you would most likely be infringing someone's copyright (i.e. whoever took the photo). If you have copyright clearance, you may or may not be able to use it. There are definitely plenty of situations where you can't (even if you took the photo yourself), but I believe there are some where you can. The fact is though that I'm not sure about that, and I wouldn't risk it without clearing it with a lawyer (which isn't worth the cost most of the time - especially since they'll probably tell you to play it safe and not do it).

Names should be okay, but it depends on the name and the use. Here there are two obvious problems - 1) Using celebrity names, you could be sued for libel, 2) Using titles, you may infringe registered trademarks.

Titles can't be copyrighted, and in theory we should be free to discuss our opinions of a titled work (even in t-shirt form). On the other hand, trademark law may have a thing or two to say on the matter so it may not be in the clear.

Quote:
Originally Posted by marydela
I am so confused on this issue...
It's a confusing issue.

Quote:
Originally Posted by marydela
In the past my husband has bought tons of batman tshirts. When I look at the tshirts, the brand is hanes, but the design/logo is of Batman? When I revisted the website, I saw nothing indicating they were licensed to sell comic book character.
Hanes make the shirts themselves, but the Batman printing could have been done by anyone. Plenty of printing companies leave the original tags in place. The shirts may or may not be licensed - if he's bought as many as it sounds like chances are some of them are licensed and some aren't.

Quote:
Originally Posted by marydela
Is everyone getting permission to actually use the rollling stones name?
Definitely not. As monkeylantern said, there's a lot of illegal use out there.

Quote:
Originally Posted by marydela
I would appreciate any advice and clarification. Thank you!!!!!!
My advice is to either avoid the entire issue by not entering the grey area, or to talk to a lawyer. Either option is a total pain, but it's the only safe way.



 
 
Old October 31st, 2005 Oct 31, 2005 9:21:47 AM -   #4 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by monkeylantern
The exception are people "who have made their image public domain". This basically means politicians, and you can go to town with them.
Do you know any sites that discuss this issue further?

I've often wondered about it. I'm aware that politicians are fair game, but I also get the feeling that a lot of other high profile public figures are too. Unfortunately I've never really had that comfortably confirmed or refuted.



 
Old October 31st, 2005 Oct 31, 2005 10:07:59 AM -   #5 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Do you know any sites that discuss this issue further?

I've often wondered about it. I'm aware that politicians are fair game,
I think if you do searches on "right to publicity" you should find loads of information on the topic.
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Old October 31st, 2005 Oct 31, 2005 10:10:14 AM -   #6 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Thanks so much for your advice. How do I know what's trademarked? For example if I wanted to use the name clark kent? How would I go about finding out?

Aslo, if I did use a picture that I found on google under images. How do I track down who took the picture? Any suggestions?

I appreciate all your help! Thank you!
 
Old October 31st, 2005 Oct 31, 2005 10:38:44 AM -   #7 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by Rodney
I think if you do searches on "right to publicity" you should find loads of information on the topic.
Thanks, I'll look into that when I've had some more sleep

Quote:
Originally Posted by marydela
Thanks so much for your advice. How do I know what's trademarked?
You can try doing a trademark search online (there's a link at the bottom of the navigation bar on the left of this site). It's sometimes useful and it's worth a try, but the problem with that is that while it can confirm something is trademarked, not finding something doesn't mean it isn't.

Quote:
Originally Posted by marydela
For example if I wanted to use the name clark kent? How would I go about finding out?
Since Clark Kent is a fictional construct and not a name as such, it may be covered by copyright. I doubt it could be trademarked, but it may not be free to use either. Clark Kent definitely constitutes someone else's intellectual property, so it would be thin ice to use him.

Quote:
Originally Posted by marydela
Aslo, if I did use a picture that I found on google under images. How do I track down who took the picture? Any suggestions?
Contact the owner of the website. They will either 1) Know where the image came from (who photographed it, or which copyright free site they got it from, or which image library they licensed it from, etc.), or 2) Be using it illegally.

Quote:
Originally Posted by marydela
I appreciate all your help! Thank you!
I think I may have given the false impression that some of this stuff is free to use. I was trying to leave open the possibility that it may be (because I think a small amount of it might), but plenty of it definitely isn't, and you're probably better off talking to a lawyer rather than some unqualified folk on a forum (i.e. people like me). The rule of thumb is don't use it unless you're sure it's legal.



 
Old October 31st, 2005 Oct 31, 2005 12:02:34 PM -   #8 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Doing something "legal" does not mean you cannot be sued. You may ultimately be right but you still have to defend yourself in court. Big organisations sue small ones all the time knowing they would probably lose if the case ran its course but very few small organisations can fight the battle.

Also, there are loopholes for parody but once again, you can still be sued and have to defend yourself.
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Old October 31st, 2005 Oct 31, 2005 2:35:51 PM -   #9 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by crakbot
Also, there are loopholes for parody but once again, you can still be sued and have to defend yourself.
Parody isn't nearly as protected as some people tend to think it is. You do have the right to parody, but there are several factors, such as if it can be considered defamatory or you are making a profit off of the parody product.
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Old October 31st, 2005 Oct 31, 2005 7:56:13 PM -   #10 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by crackbot
Doing something "legal" does not mean you cannot be sued.
Very good point.

At least if you're absolutely sure it's legal you can feel safer selling out the rest of your print run and then just giving in to the cease and desist letter. Still, small comfort and depending on how quickly you can sell it not necessarily a good idea (I certainly wouldn't suggest anyone else do it as it could get you in trouble - I just think it's what I'd do if the C&D was baseless).

It's a shame big companies so often use their power to destroy smaller companies, but as you say it definitely happens. It happening on the open market is one thing, but mis-using a courtroom quite another.

Quote:
Originally Posted by Twinge
Parody isn't nearly as protected as some people tend to think it is. You do have the right to parody, but there are several factors, such as if it can be considered defamatory or you are making a profit off of the parody product.
Also a very good point.

Neither of those things automatically invalidate a parody, but you're right that they are factors. And of course if a t-shirt is defamatory we're back to the libel thing again.

The most important thing about the parody laws that people frequently overlook is that you need to be parodying the actual property you are "borrowing". So if I make a parody using the Coca-Cola logo, I need to be parodying Coca-Cola - I can't use it to parody Chevy Chase.

I suspect, but am not sure, that reasonable targets of parody also work along similar lines as reasonable targets of public domain figures. Not all intellectual property is a fair target for parody. I also suspect I should really start reading up on this stuff and stop speculating so much...



 
Old November 8th, 2005 Nov 8, 2005 5:45:02 PM -   #11 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Solmu, I've definitely entered the 'grey area' with my t-shirt shop http://store.99dogs.com/ovejanegra/ , which is almost 100% parody t-shirts...

I've researched a bit about parody use, but it's all pretty vague, and mostly I'm just hoping the brands that be won't get angry at this mere mortal...

What really confuses me is this: I see all this debate about parody and trademarks, but at the same time there are tons of people using parody and profitting from it all the time... I mean, look at stuff like SNL, MAD, The Simpsons, Weird Al Yankovic, Eminem... all of it is full of parody, and they're not always parodying the exact property they're borrowing...

Maybe it comes down to the little man being the only one that's not allowed to do it... who knows.
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Old November 8th, 2005 Nov 8, 2005 7:15:15 PM -   #12 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
Originally Posted by blackSheep77
I've researched a bit about parody use, but it's all pretty vague, and mostly I'm just hoping the brands that be won't get angry at this mere mortal...
Unfortunately that's all a small store (i.e. anyone who can't afford a big lawyer) realistically can do. I don't think it's a great idea to be operating a business you can't be confident is legal, but I certainly wouldn't blame people for it (personally I think parody should be codified and massively expanded, but that's a whole other argument).

Quote:
Originally Posted by blackSheep77
Maybe it comes down to the little man being the only one that's not allowed to do it... who knows.
That's definitely the case to a certain extent.

To cover some of your examples though: I've often been told Weird Al does actually legally licence the works he parodies. SNL do get sued on a fairly regularly basis, but they're big enough to go about handling that (I imagine they win some and lose some, mostly settling out of court - but that's just speculation).

Properties like The Simpsons and SNL do generally have teams of lawyers go through their material before it goes to air.

Obviously the little man is allowed to do it, but without the money for the attack dogs it's very hard to survive.



 
Old November 8th, 2005 Nov 8, 2005 8:34:55 PM -   #13 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Solmu, I imagined something like what you say about SNL and The Simpsons to be the case... and everything else you said makes good sense too
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Old June 5th, 2006 Jun 5, 2006 11:36:36 AM -   #14 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

So if politicians images are ok to use, can I get a picture of Arnold S. (governor of California) in politician mode, stick some glasses on him to make him look like the terminator and sell it legally?

Also, are there other famous people that have images which are legal to use? Is there anywhere on the web that I could use to find pics of famous people that are legal to use?

Thanks,

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Old June 5th, 2006 Jun 5, 2006 11:55:57 AM -   #15 (permalink)
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Default Re: Copyright, trademark, what's legal? Ebay?

Quote:
stick some glasses on him to make him look like the terminator and sell it legally?
If you are looking for loopholes, you may want to talk with a lawyer.

But in general, the answer is no. You can't relate him to his movies, only as his role as a politician.

Quote:
Also, are there other famous people that have images which are legal to use? Is there anywhere on the web that I could use to find pics of famous people that are legal to use?
In general, no, you can't use other people's images/likeness without their permssion. You would need to ask and get permission to be legal.

Your best bet if you want to tread into the world of celebrity image licensing would be to talk to a lawyer.
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