Parody & Copyright Law
This page is intended to provide information about intellectual property law in order to help the Threadless community in the submission process. Legal information is not the same as legal advice – legal advice is the application of law to an individual’s specific circumstances. The information contained on this page is general legal information and should not be construed as legal advice. If you are unsure of whether or not your proposed submission is compliant with the laws governing intellectual property, it is recommended that you consult a lawyer, as we are not a law firm, but simply purveyors of awesomeness.
Copyright vs. Trademark
It might first help to explain the difference between Copyright and Trademark. A copyright is a property right in an original work of authorship (such as literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. A trademark is a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.
“Fair Use” is a legislative provision included in the U.S. Copyright Act that allows for use exceptions to a copyright holder’s exclusive rights. The predominant exceptions of fair use include non-commercial speech, social and political commentary, news reporting and teaching purposes. The four primary factors in determining whether use is fair include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Parody is also considered one of the “fair use” defenses. Parody, in the eyes of the law, is applicable when the new work calls to mind the original work (the original author’s design or trademark) and criticizes or ridicules the message of that original work or trademark. There is a common misperception in the blogs that Parody and Satire are the same thing. Satire is different in that a satire piece (new work) uses the original work as a mere vehicle to criticize something else. The fine line distinction here is that the parody creates more of a new original work that could stand alone whereas the satire is reusing the original without any substantial change and thus not falling under the aforementioned fair use factors.
That being said, while parody can be deemed a fair use in certain situations – that is by no means an absolute truth that all parodies constitute a fair use. This is a very complicated area of law and many courts interpret the fair use factors differently. As always, when in doubt you should consult an attorney if you are unsure.
When considering submitting a design, you should ask yourself the following questions regarding your design and if it would qualify as a parody:
- What is the original work?
- What is the message of the original work – what does it stand for?
- Does my design criticize or ridicule the message of the original work?
If the new work is funny but in a way that makes no commentary on the message of the original work, it will probably not be considered a parody. The perception of some type of perceived social commentary or criticism is the key.
Finally, you must always be cognitive of the fact that this is a commercial enterprise – this fact alone will make a copyright/trademark holder and a reviewing court put extra scrutiny on the submitted design when applying the fair use factors.
All celebrities are afforded statutory protection which gives them a right of publicity. In other words, it is unlawful to use another person’s likeness for commercial advantage without permission. By selling T-Shirts depicting celebrity images, without permission, we would be clearly violating the law, and as such, have no interest in accepting submissions that utilize celebrity likenesses.
Dead Celebrities – Over the past several years, there has been a state-by-state trend of passing statutes to protect the estates of deceased celebrities from the unauthorized use of their image and likeness from commercial exploitation. Interestingly enough, the surge in statutory protection came on the heels of a large number of lawsuits filed by deceased celebrities’ estates against T-Shirt companies. Threadless.com respects the rights of both living and deceased celebrities and will not accept submissions featuring celebrities’ images.
Political Figures Exception
Conversely, political figures – while many enjoy “celebrity” status (and notoriety for that matter) – are fair game.
One final key point to remember – per the terms on our website governing submissions – the final decision on whether to accept and print a submission falls squarely on Threadless.com and our production department. If we decide to decline your submission because we feel it poses certain “grey-area” risks that we as a company do not want to take a chance on, we simply ask that you respect our decision and refrain from making subsequent arguments with us (via emails, blogs, etc.) that your design is a ‘fair use’ or ‘protected speech’ and that we are wrong for not producing it – at the end of the day, the liability for infringement is going to fall squarely on our shoulders and as such, we ask that you respect our decisions.