Monday, November 12, 2012

Copyrights: What’s the real deal? – Part I of II

Every digitizer and embroiderer faces this from time to time. Let’s talk about copyright. Do we or don’t we digitize or produce a design we know doesn’t belong to the person asking for it? The correct answer is “no”.

Webster’s defines copyright as: the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).

Simply put, if your customer isn’t either the owner or a rep for the company or a promotional products rep slated to procure swag for them, the design they’re bringing you falls under copyright law and you shouldn’t be doing it. There are a few exceptions, but the bottom line is; if they don’t own the design, they have no right to use it and it is illegal for you to recreate it or produce it.

This comes up frequently with regard to sports teams, car and motorcycle manufacturers and cartoon characters, but is just as illegal with smaller logos of more unrecognizable designs. You can’t know every design out there but with access to the internet, you can sometimes search a logo graphically and find it. Know who you’re doing business with. Even if you unknowingly infringe and sew a design without authorization, you are every bit as liable as the person who asked you to reproduce it, should the copyright holder decide to make an issue of it legally.

In the industry, there’s a running joke about the “Disney Police”, but it’s no laughing matter. They exists in the form of whole divisions of corporations that do nothing other than to uphold the company’s copyrights and prosecute people, Disney and Harley Davidson being the ones that first come to mind.

As I said, there are some exceptions. Companies, franchisers and organizations like Girl/Boy Scout troops and car dealerships who sell particular makes have the right to use those logos however the company/organization stipulates that they must get their logoed items from them (the company) directly or through channels set up by them in order to insure the quality and integrity of their logos. The exception comes in if you get written permission from them to recreate/use the logo or get set up as a preferred vendor.

With professional sports teams, permission/licensing is applied and paid for and is very expensive and rigorous. The other thing you’ll run up against is car enthusiasts and collector clubs. Just because they are a Coca-Cola Collector Club or the Corvette Club (or own a corvette) doesn’t give them the right to use the logo.

Along with trademarked designs comes a thing called trade dress. Trade dress creates a visual impression which functions like a word trademark. Basically, a design doesn’t have to even have the name of the company on it to be covered by their copyright. That means, a picture of a Volkswagen Beetle is essentially the same as the Volkswagen logo for our purposes. This is why stock design companies have removed car designs from their offerings for the most part unless the car is so generic as not to be relatable to a specific make or model.

And one other thing, there’s a common misconception that if you change a logo or design by 10%, it is a new design and as such is no longer covered by the copyright. Not true. Don’t fall for it.

In Part II, we’ll discuss the copyrights of designs created legally.

Information contained in this article is for informational purposes only and should not be taken as professional legal advice. Companies mentioned in this article are used only as examples. Contact a copyright lawyer in your area for specific legal determinations and issues.

For more information about NeedleUp's digitizing services, please visit our website at where you can view some of our most recent work and get pricing and more information on contacting us. Donna Lehmann is owner of NeedleUp Digitizing and she can be reached at 303-287-6633

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