You didn't buy the artwork, you bought the transparencies. I can't really see how you have any legal footing to claim ownership of artwork you didn't create, commission or purchase rights to. At best, maybe it's ok to use it. But we don't really know who created it and for what purpose. So it's all just a best guess at this point. As usual, it becomes a risk/reward question. I guess I would say this is fairly low risk.

 

I have to disagree on that one. You purchased the ASSETS of a company. If those assets were listed by the bank to include everything you could see at the auction, by law (at least in Ohio) it cannot be encumbered by any liens or contracts. You have to assume the bank knew what it was doing and made sure that all debts and contracts were either satisfied or rendered null and void, including any intellectual property. Assuming that, then the transparencies are yours to do with what you like. If there are copyrights on any of the artwork, the bank is liable, not you. If I were you, I would even contact the companies who's logos you have, if they are national companies that have gone bankrupt, retro shirts are always a hot item.

 

I have to disagree on that one. You purchased the ASSETS of a company. If those assets were listed by the bank to include everything you could see at the auction, by law (at least in Ohio) it cannot be encumbered by any liens or contracts. You have to assume the bank knew what it was doing and made sure that all debts and contracts were either satisfied or rendered null and void, including any intellectual property. Assuming that, then the transparencies are yours to do with what you like. If there are copyrights on any of the artwork, the bank is liable, not you. If I were you, I would even contact the companies who's logos you have, if they are national companies that have gone bankrupt, retro shirts are always a hot item.

This is not the way it works with art. Yes, you have film and that film is yours, but that does not mean you can use it to print. Example: You can not start printing Nike swooshes just because you bought some nike shoes at an auction. You need the license to print the copywrited material or you can get sued, not the bank. The bank sold you the film and the film is yours, but the bank did not sell you the copywrites for the art.

 

The Ohio law seems fair enough. Does it apply if the items were auctioned by a private company? Or if you dealt or transacted directly with the company?

 

You need to be carefull what you do here. You really need to talk to a lawyer about this. I would not use the art. Many Companies "allow" a screenprinter to use their art or logos for a project but that screenprinter does not own the art. Then the screenprinter will keep the film if there ever was a reorder. here is an example. I worked with a screenprinter where we would get a order to print UA "crimson tide" shirts. We were only able to print for people who had purchased the proper licenses for us to print for them. They still have the film, but if we were to run those prints ourselves or for anyone without the license we could be slapped with a 250,000 lincese fee or get sued.
Even on the mom and pop store film you need to watch out. Many screenprinters charge to design art or logos for people. So in the legal eye the art belongs to the mom and pop stores or people who were charged for the art. (Unless the screenprinter had special documentation stating that they own all art) *doubtfull*.
Hope this helps.

 

If the company did the artwork and if the company retained all ownership of the artwork and didn't sign off a transfer of copyright, then by buying the company's assets I'd say you can use it. But if it's something someone else brought in or if they sold the copyright, then no. But this is a question for a lawyer to have the final word on.

I would start by trying to find out whether the artwork came from the company or is obviously owned by someone else.

 

to what degree must a printer exercise due diligence in checking if the artwork is legal or not. I would think that there is a defining line as there is only so much that a printer can do(check). There would be no problem with darth vader, disney, nike, coke, etc. But what if the design is something virtually unheard of like alphabet brothers corp, robot dance studio, etc?

 

Angel,
I don't think there is a defining line in regards to due diligence. I think it's somewhere between legal and practical. Like you said, major properties would be easy to figure out. So printers have a responsibility to do the right thing in those cases. With something like Robot Dance Studio, it's a matter of applying logic. It's probably not likely that someone is trying to profit off a random dance studio. So if someone says they work for the studio or are running a fund raiser for the studio, it's logical to believe they are doing the right thing. If they supply vector artwork, that's a good indicator. You could call the studio and ask if they are aware that someone is using their art. If the person is comfortable signing a waiver, that's a good sign they have rights to use the art. I don't think printers have to go overboard with due diligence, but it's a good idea to be aware and ask questions or take action when necessary.

 

Company logos would be easier to check but a non-logo t-shirt design would present more problem. And the sad thing is, that the "defining line" is often defined at the courts.

Is the "I ♥" MUG or WINE GLASS more than 30% different? The MUG AND WINE GLASS should be fine but what about the "heart? BTW, is the "♥"really copyrighted or is it something generic (and free for all)? I've read there have been some cases filed over the "I ♥" something concept.

I think more important is that the designs are different enough to be distinguishable and not too similar but this too raises many questions. In the final analysis, I think the best is "don't give them an opportunity to sue". Otherwise, Print and pray.

 

i haven't even really begun to go through all of it, but the majority of it is stuff i wouldn't use anyway, like a fundraiser from 2005, local businesses and some national chains like KFC, all of which i think falls under pretty obvious uses. there are others, however, that i don't know how i would even begin to investigate as we've lost contact with the previous owners. i doubt if the owner even had anything to do with any of the designs, he more or less just owned the place and let others do their jobs. his son was the salesman, who spent most of his time playing on facebook, and i he did some designs on his own, but i have seen a few and there's no way he designed the things i want to use (i know what he designed as for a while i had their screenprinter working for us, showing us how to screenprint and such).

there's one in particular that i really want to use, a flamenco dancer in the foreground with a guitarist sitting on a stool in the b/g. no text, no indication at all where it came from, what context it was used in, no paperwork, not even an initial on the transparency. it's just there, a beautiful design i want to use. and it's not as if i want to steal someone's artwork, i would have no problem working something out with the person if i knew who it was. my option is don't use it and let it rot, or revive it after it had sat in a file probably for ten years or more.

i didn't know if there was any legal assumption or implication here that would allow me to use it (i'm in ohio, btw). i agree, tim, the risk is pretty low, but then again i'm in a small town and it would be my luck someone would recognize it and say, 'hey, wait a minute....'

other designs are pretty generic, but still cool, such as aztec symbols, and i doubt anyone can lay claim to those.

our mascot is the pirate, and i've come across some pretty cool pirate ship transparencies used for the school i'd like to use more as a background/filler for an MMA style west carrollton pirates themed shirt. i assume the other shop had permission... but i don't know. true, that doesn't give me permission, but is it assumed that that artwork is rather generic and free to use, or am i potentially (and i realize it's not likely) opening up a can of worms?

 

Ryan it seem obvious to me that you are just looking for answers you agree with....I do not think it is okay to use any of it......To me it no different than taking images off Google....But have at it!.....Only you has to deal with the consequences of your actions....

 

on the contrary, i'm not looking just for answers i want to hear. if that was the case, i would agree wholeheartedly with mike. i don't know if it *is* okay to use these images, if so to what extent, if not why and how could i make it to where i could use them. if i wanted to believe anything i wanted, i would assume all the unattributed designs were done by the owner's son, which i know is not true by a longshot, and wouldn't worry about it, at least not as much.

but, if i can use these designs, i want to know. that's why i asked in the first place. i'm not as snarky as you're suggesting here, but if it's legal to use, why shouldn't i? i did pay for them after all. if these guys bought the designs outright, which is so often the case, then sold them to me via a bank auction, they now belong to me, don't they? how far can i go assuming that's the case? and i think it's a little cheesy to imply otherwise....

 

But you keep thinking you bought designs.....You did not!.....You acquired paper, films, scraps, etc.....It may be legal to re-sell the physical goods, however, you can not re-produce what is on them....

 

and that's what i want to know, what it is that i bought and what rights, if any, i have to use them. i'm trying to present an argument to see if it has any merit. if not, so be it, life goes on and it's not as if i can't come up with my own things. however, i do think it would be a shame if some of this stuff dies with me when i could have used it and didn't know it.

by virtue of its existence it's copyrighted. if the previous screenprinter owned the copyright, is there any legal implication or assumption that the copyright is transferred to me when i bought the designs in what's possibly the only media they still might exist? without any practical way of determining who owns the design, is there any legal implication or assumption that the previous owner owned them outright? that's rather heart of the matter, eh?

it's pretty simple: i don't want to step on any artist's rights, but at the same time if i have the right to use them, why wouldn't i if i wanted?

 

if the previous screenprinter owned the copyright, is there any legal implication or assumption that the copyright is transferred to me when i bought the designs in what's possibly the only media they still might exist?

Not at all.

Generally speaking, the original creator of the artwork will get the benefit of the doubt. Unless there was a specific agreement to transfer copyright, the legal implication or assumption is that you only purchased the physical transparency, not the right to reproduce the artwork.

without any practical way of determining who owns the design, is there any legal implication or assumption that the previous owner owned them outright?

Same as above. The original creator of the artwork will get the benefit of the doubt. Their is no legal implication or assumption that the owner of transparencies also owned the copyright.

 

Ryan,
If you coincidentally designed something similar to the flamenco dancer/guitarist, aztec symbol or pirate ship, you probably wouldn't think twice about it. You would print and sell the shirts with a clear conscience because you know you created it without the intent of infringement.

The difference here is that because you are using existing transparencies, you know you are using something you didn't originally create.

But without knowing who created the design, I don't think you can get a definitive legal answer. So it really depends on how you feel about it. We both know you are not intending to infringe. But you are in fact using existing art.

If an issue arises, I'm sure you can deal with it.

 

Royce, I don't get the impression that Ryan is just looking for answers that he agrees with ... I think he's sincere in asking what rights he may have, if any, to use the transparencies.

Ryan, if it were me, I'd probably destroy all of the transparencies (but that's just me). At a minimum, you should destroy all of the transparencies that contain obvious trademark issues. Then, if you really want to use the other transparencies, you should take it upon yourself to track down (as best as you can) the creator of the artwork or the customer who may have ordered it in the first place. Probably like trying to find needle in a haystack, but you should at least make an effort to identify the origins of the work.

In my view, when it comes to my business, there is no reward great enough to justify the risk of destroying our credibility or reputation ... and ultimately our business over stuff like this (legal issues, trademark issues, IP rights, etc). It only take one bad decision to bring down the house.

 

hm, y'all are probably right, and it makes sense. it was my first thought, too, but, you know, you don't know if you don't ask, eh? i was hoping against hope that someone would have given me the answer i was wanting. ah, well.

come to think of it, i might be able to track someone down on facebook and ask. not sure why i hadn't thought of that until just now ~ even after mentioning how the son didn't do much else while he was there. (the last i heard, he had gone from the salesman for a million dollar company to helping his buddy install car stereos. pretty humbling, and a cautionary tale to boot.)

thanks for all the help. i think i'll keep the artwork for now, at least. some of it i could clearly trash, but some of it may come in handy down the line when the economy picks up and the little businesses start getting shirts again (or i get time to do some sales calls and maybe make up a sample using the old artwork).

 

“While is it very disturbing to see the alleged theft of original art, it is a matter between the artist whose work is being violated and the alleged violator.”

By definition, Copyrights are violated every second on the internet.

”Only the original creator/writer (or there assigned agents) have the legal right to confront the alleged violator regarding copyright infringement.”
“When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.” (US Copyright Office)
I’m sure to expect the Copyright Police to come arrest me for copy and paste violations of these excerpts.

 

i'd venture to say that's public domain.

realistically, there's little chance of the owner ever knowing about it if i printed the design. and i believe in fair use, i believe fair use rulings favour the guy with the bigger wallet and isn't right, and i believe in the artist's rights. i just hate that the design goes no further than my basement. so, barring any other compelling argument for using it/them, i have no other option than strangling the idea at this point.

i can always redesign the things. that i have no qualms about. if i did, i wouldn't make so many things look like a retro design, which is essentially borrowing the spirit of artistic elements that was invented long before i was even born. a redesign may be even better, hard to say, and it's not as if a dancer and musician design was never used before, lol. i'll play around with some versions of it tomorrow.

 

i'd venture to say that's public domain.

realistically, there's little chance of the owner ever knowing about it if i printed the design. and i believe in fair use, i believe fair use rulings favour the guy with the bigger wallet and isn't right, and i believe in the artist's rights. i just hate that the design goes no further than my basement. so, barring any other compelling argument for using it/them, i have no other option than strangling the idea at this point.

i can always redesign the things. that i have no qualms about. if i did, i wouldn't make so many things look like a retro design, which is essentially borrowing the spirit of artistic elements that was invented long before i was even born. a redesign may be even better, hard to say, and it's not as if a dancer and musician design was never used before, lol. i'll play around with some versions of it tomorrow.

If you really like the art why don't you create some art like it. If your art is 30% (not sure on this number but it was right the last I heard) different then there is not legal obligation to the owner of the original art.
Example: I own the copywrite to "I heart (picture of a heart) U cup" (picture of red cup). That art is mine. However there are shirts all over ebay with enough of a variation that I cannot do anything about it. I am not saying you can steal art and change it enough so you won't get in trouble. What I am saying is that you can take the time and create your own art from design elements you like and will not have to worry about any of this.

 

i've heard the (insert random number)% before. some people operate under the idea that if you change 7 things, you're okay, perhaps that's where the 30% comes from as we think in terms of 10's, so 7 from 10 equals 30%. hey, i bet that makes perfect sense to lottery players, lol.

it depends on a lot of factors, but generally you can gut 90% of a design and still be infringing if the remaining 10% is the heart and soul of it, that which makes it recognizable and, usually, commercially viable, as i recall without looking it up to refresh my memory. in other words, there is absolutely no mathematical equation that will necessarily get you off the hook. it would be difficult, if even possible, to determine, 'oh, i need to slash another 5% of the design to be good here.'

there's no magick number, no rock solid formula. that's why fair use can be a nebulous thing, because many issues have to be determined based on many factors.

but, yeah, i did play with changing the design around today. basically the dancer will get redrawn probably in a different position and the background guitarist is likely to go from a guy sitting on a stool to an oversized background image of a guy from the waist up playing. working with different angles and positioning. it goes from the dancer dancing to the music from the guitarist in the same scene to her dancing to a large 'ghost' player that perhaps only she hears. it's a pretty obvious change, imo. i did like the idea of just his hands on the fretboard, but couldn't find a position for the dancer that looked good.

 

...it depends on a lot of factors, but generally you can gut 90% of a design and still be infringing if the remaining 10% is the heart and soul of it, that which makes it recognizable and, usually, commercially viable, as i recall without looking it up to refresh my memory. in other words, there is absolutely no mathematical equation that will necessarily get you off the hook. it would be difficult, if even possible, to determine, 'oh, i need to slash another 5% of the design to be good here.'

there's no magick number, no rock solid formula. that's why fair use can be a nebulous thing, because many issues have to be determined based on many factors.

....

Well said. Changing 100% of mickey's face but retaining the 2 ears on a round face may still get you into trouble.

 

there's really nothing special to the design in the sense that it's a dancer and guitarist. i can't do the hokey-pokey, so i'm no dance historian, but i do know the lone acoustic guitarist playing for the flamenco dancer is common as an idea. it was drawn very nicely and would save me the time and hassle of coming up with something else. i also can barely draw a stick figure, so coming up with something actually good looking is a challenge. you're right, michael, i *could* use it and not worry much about it, but i don't want to be that way.

on a completely unrelated note, today i was working on some of the design and came up with an interesting alternative idea for the dancer/guitarist, so it just goes to show that sometimes it's best not to get what you want.