I wish I could tell you that it’s ok to print whatever you want. But the reality is that copyright law applies to all intellectual property, even what you want to put on a t-shirt.
Copyright law can be complex, which is why you’ve landed here.
You’re aware that you’re breaking the law when you’re over the speed limit. But often, it’s hard to track someone down who’s breaking a copyright law, and much of the enforcement is dependent on the copyright owner’s desire to pursue a case. This has made the law difficult to enforce, which has led to much confusion over what is ok and what is not ok.
All laws are going to be viewed on a case by case basis, and this is especially true for copyrights. Some people are going to get away with sketchy practices, but my recommendation is not to chance it, as it could cost you or your company a lot of money to fix something if you cut corners today.
That said, here are the basics of design copyright law, and some pointers for designing the perfect (and legal) t-shirt.
A brief history of copyright law
The US enacted its first copyright law in 1790. Our country was just 14 years old when we started defending intellectual property rights. The law currently in effect was rewritten in 1976 and has been amended as recently as 2016. It’s been growing over time into a colossal mass—370 pages in total.
The law was written to encourage creatives and researchers by defending the monetary value of their work. I know it doesn’t always feel right when you have to pay someone just to use an image, but all of us can understand the intent. Artists deserve to make some money, and if everything could be copied then they wouldn’t make a dime.
A brief summary of copyright law
Most of those 370 pages don’t discuss the basic content of the law at all, but rather amendments and exceptions (here’s the link direct from the US Copyright Office if you want to get into the nitty gritty details). Below are the key components of the law if you’re just worried about your t-shirt.
In §102, the law is defined in its general form. Copyright protection covers all original works by an author. It even takes into account advances in technology, including works “now known or later developed.” Things that can be copyrighted include:
- Literary works
- Musical works
- Dramatic works
- Choreographic works
- Graphic, pictorial, or sculptural works
- Film and audiovisual
- Sound recordings
- Architectural works
And although the law doesn’t explicitly list memes, they are certainly intellectual property. Do your research and find out who owns the meme you’re wanting to use or if it’s ok to use. Keep reading for some resources that will help you find some real gold online.
The law clarifies that an “idea, procedure, process, system, method of operation, concept, principle, or discovery” involved in the creation of a work is not protected by the law. So, you can follow the same methodology as an artist. You just can’t steal their finished product.
For example, you can be an impressionist just like Van Gogh, but you can’t copy Starry Night. Well actually, you can copy that one because Starry Night now belongs to the public domain.
What’s in the public domain?
In chapter 3 of Title 17 (the name of the copyright law), a copyright is given a very clear lifespan. Any work created on or after January 1, 1978 “endures for a term consisting of the life of the author and 70 years after the author’s death.”
All works that pass that 70 year mark move into the public domain. An artist may also not keep up to date on their copyright, or they may intentionally allow their work to slip into the public domain.
If it’s in the public domain, you can do almost whatever you’d like with it. There are still some complications if you collect a large amount of the artist’s work and compile it. This has its own copyright called a “collective work” copyright. Stanford offers some great insight if this is a question for you.
What is fair use?
In §107, exclusive rights are suspended in cases of fair use. In other words, there are some cases where you can use a copyrighted work. Fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
If you’re commenting on or teaching about anything that’s currently copyrighted, you don’t need to worry too much about using or even reproducing a small amount of the material. But if you’re not sure if what you’re doing is fair use, you should probably lean on the side of caution.
The US Copyright Office does offer four questions to help guide you through their definition of fair use:
“The purpose and character of the use.” This especially skews towards the benefit of non-profit and educational usage. But don’t make the mistake of thinking this is the only factor involved.
“The nature of the copyrighted work.” This isn’t the clearest thing in the world, which is why the Copyright Office offers help here. Basically, this is going back to the original intent of the law. If what you’re doing is damaging someone else’s creativity or ability to profit from that creativity, it’s not going to look good for you.
“The amount and substantiality of the portion used in relation to the copyrighted work.” Even a teacher may run into trouble if they’re copying entire novels.
“The effect of the use upon the potential market for or value of the copyrighted work.” If you’re going to eat away profits for the artist, you need to be careful. This is especially true because if the owner thinks they’re going to lose money, and they have the slightest case, they’re going to take you to court.
If you’re using your t-shirts for non-commercial use, you have a much better chance of fitting into the category of fair use. Just to get ahead of the question, however, company t-shirts are commercial use. But if you and a couple friends are big fans of Star Wars, you should be ok making a small fan club if nobody’s making any money out of it.
A t-shirt design copyright law case study
Let’s talk about a few t-shirts and weigh in on their legality. You’ve got the basics of the law down now, but these particular cases might shed some light on your specific question. I’m a big fan of Stranger Things, and if you haven’t seen it, you should check it out on Netflix. We’ll explain a couple t-shirts that range from overt nods to Stranger Things to simply ripoffs.
Example #1: A blatant infringement
I found one t-shirt that simply says Stranger Things, except they flipped Things upside down (even this isn’t too creative since a key plot-point in the show involves an alternate reality called the Upside Down). Not only are they using the title of the show as the only content on the shirt, but they’re even doing it with the same font. This shirt has little that’s new and certainly infringes on Netflix’s copyright.
Example #2: Could go either way
I found another t-shirt that had a sketch of the monster in Stranger Things walking through Joy Division’s album artwork for Unknown Pleasures. This one’s a little harder to land on. They’re clearly using concepts from other artists. But it does seem like a novel idea to blend the two together.
Then again, neither of these graphic works belong to the artist that drew it. Stanford discusses how transformative ideas will always help someone in court, and this seems like a transformative idea—or new idea. Looks like a toss-up to me. If you decide to go with an idea like this, a court is going to end up making the final call.
Example #3: You’re in the clear
The last t-shirt we’ll discuss is a shirt for the Hawkins AV Club, which is a club that the main characters of the show are apart of. The designer created a cool graphic for the club that wasn’t used in the show. Though this is a clear nod to the show, it’s doubtful that Netflix owns a copyright for the fictional town of Hawkins, which makes this one pretty safe.
Now, one problem here is that all of these shirts can be found on the same website. So some shirts that might have been ok alone will now be weighed alongside the shirts that are blatant infringements. If Netflix did decide to prosecute, they probably wouldn’t be looking at a t-shirt by t-shirt basis. They would probably be sending a more general cease and desist (they’ve done this before—check out the story here).
All this to say, Netflix probably won’t be prosecuting anytime too soon. Netflix had a market value of $152 billion in 2018, and I don’t think these t-shirts are really disrupting their market. Plus, the optics of a multibillion dollar cracking down on every tiny case of potential copyright infringement aren't great from a PR perspective (ask Disney).
If you really need a certain picture or celebrity’s face on your t-shirt, then you need to find out who has the rights to the image and contact them before proceeding. Oftentimes, people will be nicer than you think in these situations, but there are some people who are really trying to milk it for all it’s worth, so just be ready for anything. And hold onto things loosely until you have the green light.
There is a growing community on the internet that’s tired of all the licensing and copyright issues, so they’ve built sites that help you navigate this area. The leader of this movement is the Creative Commons, who have registered different works to be readily accessible and searchable here.
Talk to us
The law seems pretty straightforward when you first read it, but when you look at it on a case by case basis, it gets a little foggy.
We still think it’s best to stay in bounds when you design a t-shirt. If you follow copyright laws, you’ll end up having to make something entirely new. This will be a win for you and a win for the artist who made their work. And maybe in a couple years you’ll be happy nobody else can steal what you came up with!
Happy hunting out there! I’m sure with a little work you’ll find the perfect (and legal!) thing for that t-shirt. Reach out to us directly if you’re ready to move forward with your shirt or if you have any specific questions. We’d be happy to walk with you through the process of ordering a comfy, stylish (and one more time, legal!) t-shirt.