Is my t-shirt design infringing on a copyright?
The number one rule of t-shirt designing – BE ORIGINAL! If you’re original, then you don’t have to worry about copyright infringement. I know that can be tough sometimes, especially when you feel like you have exhausted your creative juices. So what do you do when you don’t feel creative? You probably hop on over to Pinterest or Google for some inspiration. Searching for inspiration is fine and dandy, but sometimes that inspiration becomes copyright infringement, and that’s not okay.
This post covers 5 guidelines to keep in mind when designing t-shirts.
There is no 30% rule
There is a large misconception amongst designers unaware of the law. There is no safe percentage of change from an original design that guarantees you’re free of infringement. The basic test is “substantially similar.” Essentially, the courts will ask whether an ordinary observer would be disposed to overlook the two works, and regard their aesthetic appeal as the same. As a general guideline, simply changing the font, changing the t-shirt color, moving certain elements around, changing the spelling, or changing the size of the design will not protect you from copyright infringement.
Song titles and short phrases
The Copyright Office has explicitly stated that short phrases are not eligible for copyright protection, and this includes song titles. You are generally free to use song titles and short phrases in your t-shirt designs, but you will also want to check for trademarks on the phrases. If there is a trademark on the phrase you want to use, then you most likely will not be able to use it. You should also keep in mind that if you’re wanting a design that is eligible for copyright protection, you must add more than text to your design. Text, alone, does not provide you with copyright protection.
Song lyrics can be more of a gray area. Generally, you are eligible to use a short phrase from a song for your t-shirt. This is because most phrases in song lyrics are common phrases part of everyday use. Using common phrases from song lyrics does not constitute copyright infringement. However, if the phrase “identifies” the song, i.e., the main phrase of the song, then that will most likely constitute copyright infringement. It can be hard to determine whether the lyrics identify a song. If you’re not sure, ask a few friends what they think of when they hear the phrase. If they name the song, then using the phrase is most likely copyright infringement.
Elements part of the public domain are free for everyone to use. Using these elements will not get you in trouble for copyright infringement. But you do need to be aware that someone can use an element part of the public domain, make it their own, and have that design protected by copyright laws. If this happens, the actual element is still part of the public domain, but the new design containing the element is not part of the public domain. Using the new copyrighted work will get you in trouble for copyright infringement.
If you’re not sure whether an item is part of the public domain or have questions regarding whether it’s eligible for copyright protection, it is best to reach out to the original creator to obtain a licensing agreement. Licensing agreements can be complicated, so I do suggest working with an attorney in order to negotiate the licensing agreement.
Please note that these are general guidelines and following these will not automatically prevent you from infringing on someone’s copyright. This post is only meant as a general guide. If you have questions regarding whether your specific design is infringing on someone’s design, I highly suggest hiring an attorney. **I’m providing a special offer for designers wanting specific advice regarding their design. Mention this post in an email to me for a special reduced rate!
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