Can I sell artwork of celebrities? Copyright and trademark for entrepreneurs4 min read
In 2016 I was cheering in my room as I hit 300 sales in a week from my small eCommerce business as my store took a steady boom toward the sky. But then my bubble popped because I got hit by a copyright infringement notice by Disney and Warner Brothers in my print-on-demand eCommerce store. I was confused because as far as I was aware, I did not use any of their artwork, images or brand.
The copyright law around selling artwork that depicts the likeliness of a celebrity, public personality, song lyrics or artwork is a grey area. What determines whether what you sell would infringe copyright laws depends on several factors. Keep reading, and I will help you find out whether you are on the right side of the law or not and what you can do to help your situation.
Before I go further, I want to make it clear that I am not a lawyer, and this is from my personal experience and research. If you are ever in doubt, please consult a trademark and copyright attorney.
What is intellectual property (IP)?
Literature, artistic work, music, designs and company names are some of the few examples of intellectual property. Simply put intellectual property deals with creations of individuals or companies.
Four types of intellectual property can be legally protected. Those are patents, copyrights, trademarks and trade secrets. In the article, I will be looking at copyright and trademarks since these are the most relevant when it comes to printing and selling products.
What is the difference between trademark and copyright?
Copyright is a type of intellectual property made to protect artistic work. Items covered by copyright range from books, music, videos, photography to technical drawings, adverts and software.
A trademark is an intellectual property that protects the identity of a brand such as the company name, logo, symbols and sometimes colours distinguishing their entity.
How does copyright law work?
Copyright is a law that gives the author or owner of a work the right to say how other people can use it. Copyright laws help creators to make money by selling their work and not having others replicate it unless the copyright owner gives permission to do so.
The copyright law defends the monetary value of artwork and inventions, granting authors and artists these rights (amongst others)
- to make and sell copies of their work,
- to create derivatives work,
- to perform or display their works to the public.
Ideas in the head of a creator cannot be copyrighted. The work must be original and exist in a physical form (for example, paper or digital). It also needs to be the result of creative effort; however, the amount of creative energy is not specified and is open to interpretation.
When an author or artist publishes work, copyright comes into effect immediately. You should never use copyrighted material without the permission of the owner. Still, there are exceptions, and that is where fair use comes in.
What falls under fair use?
These four factors are taken into consideration when measuring fair use to a case:
- The purpose and character of your use. Most times it is acceptable to use copyrighted material for educational purposes, research, commentary and parody. But if you are using it for commercial gain, it will likely not be considered as fair use.
- The nature of the copyrighted work. You have more freedom to use factual work or information that benefits the public as long as you cite your references. However, copying the works of artists, songs, authors, poems, novels, or movies is less likely to support the claim of fair use.
- The amount and sustainability of the portion taken. The less copyrighted material you use, the more chances that you fall under fair use. But, if you use the “heart” of the copyrighted material, even if it is a small portion, it will not be considered fair use. The rule is more lenient for parody work, meaning that you can take the ‘heart’ of copyright material to make your original parody.
- The effect of the use on the potential market. If you are selling mugs with a Star Wars characters printed on it, it would most likely not be considered fair use. As this could keep people from buying official merchandise.
Simply changing, transforming or modifying somebodies work without a license does not fall under fair use.
Tread with caution
If you are ever in doubt whether something is subject to copyright, assume that it is, that way you are better safe than sorry.
There are a few other things you can do to help yourself stay on the right side of the law and allow your business to boom:
- Avoid using trademark material. If you are unsure whether something is trademarked, check the U.S Copyright Records and the USPTO’s trademark database.
- Avoid copyrighted material.
- Ask for permission from the owner. You can get written permission from the owner of the copyright material or trademark. This may not always work, but it is worth a try if you feel that you need to.
- Consult a legal professional. If you are unsure on how to proceed, consult a trademark or copyright attorney.
Common questions about copyright and trademark
Can I print a copyrighted work for personal use?
Unless you have a license allowing you to use copyrighted material for personal use, you cannot use an authors intellectual property without written permission. Any reproduction of material that is copyrighted can be considered a violation.
How do I avoid copyright infringement notices?
The best way to stay safe is to create original content that you own.
Does the same copyright and trademark rules apply all over the world?
Copyright and trademark registration and protection are territorial. Different countries may have different laws. The law that applies to you would include the laws of the state you are selling in. It is best to consult a trademark and copyright attorney in your jurisdiction.
Are quotes copyrighted?
Yes and no. Quotes can be part of the creator’s intellectual property, therefore protected by copyright. However, if the quote has no owner is part of the public domain, you are free to use it.
Can I sell products with famous quotes?
Quotes are considered intellectual property and are protected under the law. The legal rights to a quote belong to its author (or speaker). If you are the author or the quote and wish to sell a product with a quote on it you, you should check if one of the two is true below:
- You have the authors written permission to use their quote on your work.
- The quote is no longer owned by the creator or author and is now public domain.
If you cannot reach the author for any reason, then condition two must be met to legally use the quote.
Can I sell artwork of celebrities?
If the artwork is seen as an interpretation and does not resemble or copy the works of others, it can be considered original. However, merely tracing over an existing photograph of a celebrity will not be regarded as fair use.
Can I sell fan art?
Fanart can be seen as an interpretation. As long as your artwork is original, it can be considered original work. However, taking copyrighted material of a celebrity and tracing over it will not be regarded as unique and can fall under the copyright law. Copyright material can also include photographs.
Are quotes from famous people copyrighted?
Quotes from famous speeches can be intellectual property. Always make sure if you are using a quote that it is part of the public domain or that you get written permission to use it.
Can I sell parody art or quotes?
You can create parody content using copyrighted material. Still, it is not considered fair use if you are doing it for monetary gain.
Can I sell celebrity inspired illustrations?
Yes, as long as the inspired illustration does not copy or closely resemble existing works. It is not considered fair use if you trace over a current photograph to create your drawing. You should also be careful about how you use the celebrities name and how it may appear to the public. Damaging a celebrities reputation can lead to a lawsuit. If you are unsure, you should consult a lawyer.
Can I sell song lyrics on apparel or posters?
Songs are part of intellectual property. You will need to get written permission from the author even if you are using a snippet of the lyrics. If they are your original lyrics, you should not have a problem with copyright when selling it on.
Can I sell printed internet memes?
If you created the meme, you should have no issue with copyright. If you are taking popular internet memes derived from actual copyrighted material such as a TV show for monetary gain, this will not constitute as fair use. One way around this could be to create your original interpretation of a meme. If you are ever unsure, you should consult a trademark and copyright attorney.
When can I use copyrighted material?
If you have the owners permission or have paid for a license allowing you to use the copyrighted material. Licenses can vary from personal use only to commercial use.