Hi all –

I’m new to Threadless, but on going through a lot of the designs (both submitted and up for critique), I felt compelled to write a little missive on copyright.

I’ve noticed a good number of designs on the site that blatantly infringe established copyrights. I’ve also noticed that, by and large, the general public is not aware of even the basics of what constitutes copyright infringement, and what is allowable. As Threadless is largely populated by artists, it seems a worthwhile topic to investigate here.

Although my own interests in copyright are largely ethical in nature, what artists (and Threadless itself) will want to be concerned about are the legal and monetary implications. First, it is important to note that under the current law, the punishment for each and every act of infringement is a minimum of $750 (and a maximum of $30,000). As such, one need only multiply the number of infringements on any particular shirt by the number of t-shirts printed and again by $750, and one has the total bill. (For example, then, if your shirt infringes two copyrights and 1,000 copies are printed, and you are sued and lose, you will owe a minimum of $1.5 million.)

Now, there is in US copyright law a wide berth allowing for ‘fair use’ of copyrighted materials. However, fair use is a decidedly messy area of copyright law, and, unfortunately, the only way to truly determine if a use is fair is to get sued and see what the courts have to say. This is, you’ll note, an extremely expensive and time-consuming process (even if you win the suit).

Perhaps the most common argument made by those accused of infringement is that their use is ‘personal use’. This is really just another way of saying ‘fair use’. Without going into the details of fair use, given that Threadless is selling the shirts, this weighs heavily against any case you might have. Also note that whether or not an infringing work is for sale is by no means THE determining factor in copyright lawsuits.

The second most common argument made by those accused of infringement is that their work is a ‘parody’ and thus qualifies as fair use. Putting aside the ‘for-sale’ issue (which, as I say, can be outweighed, and often is in parody cases), parody is an often-confused issue. For a work to qualify as parody, it must directly satirize the very thing that it is copying. Otherwise, it will only qualify as satire, generally speaking, and will most certainly fall outside the range of fair use. For example, then, if I create a design using the Smurfs, and depict them as a communist regime or as engaged in a Dionysian orgy, I might get away with it, as I am making a comment on how the Smurf’s society was always being depicted as idyllic despite the male-to-female ratio. However, if I create a design depicting the Smurfs, say, working at Starbucks, I’m probably not making any such comment, and thus, at best, will have created a satiric work.

Although not the most common argument made in copyright cases, what I see a lot of on Threadless are arguments along the lines of “But I redrew it/turned it into a new work/…” This won’t save you. What you will have created is known in copyright law as a “derivative work” and is every bit as much an infringement as copying a DVD. It doesn’t matter that you didn’t take the whole work, or that you redrew it, or that you made it into something new. It’s just as illegal, and you’ll be just as liable for damages.

Given that even if your use is ‘fair’, you can get sued, the best advice I can offer is this: If you don’t know you way around copyright law (and I mean in detail), do not use anything that pictorially references anything anyone else has created in the last century. You are asking for trouble. Your t-shirt of ‘Spider-Granny’ wearing Spider-man’s costume is hilarious, but you’re basically daring Marvel Comics to sue you. Likewise, your simple drawing of a classic Corvette likely infringes Chevrolet’s copyright on the design (yes, they have a copyright on the design of the ’Vette), and Chevy’s lawyers are bigger than yours. I know you drew it yourself; it doesn’t matter.

I hope this helps.

Darren (a.k.a. Fourcolours)