T-shirts & Copyright. December PO Box 1986, Strawberry Hills NSW 2012 ABN:

Transcription

1 INFORMATION SHEET G119v02 December 2014 T-shirts & Copyright In this information sheet we discuss the legal issues relevant to creating T-shirts using copyright material. Our information sheet Fashion & Costume Designers is also relevant to the information set out here. The purpose of this information sheet is to give general introductory information about copyright. If you need to know how the law applies in a particular situation, please get advice from a lawyer. Key points If you are not the copyright owner, you will generally need permission to print an image on T- shirts; Making a few changes to someone else s copyright work is unlikely to mean you don t need permission to use it; You ll need permission from the copyright owner if you want to use a quote that is a substantial part of someone else s literary work; If copyright has expired in the material, you won t need permission to use it; If you find material on the internet, this doesn t mean you can use it without permission; and The use of existing brand names or slogans is unlikely to be a copyright issue, but may raise issues under trade mark or competition and consumer law. Copyright overview Copyright is automatic; there is no need to register for copyright protection (see our information sheet An Introduction to Copyright in Australia). Copyright does not protect ideas or information (see our information sheet Ideas: Legal Protection). Copyright has a term of protection, usually the life of the creator plus 70 years (see our information sheet Duration of Copyright). Copyright can be owned by people other than the creator (see our information sheet Ownership of Copyright). What are the rights of a copyright owner? Owners of copyright material have certain exclusive rights. These include the right to reproduce (e.g. by printing images on T-shirts) and the right to communicate to the public (e.g. by advertising T-shirts containing copyright material on a website). You ll generally need permission from the copyright owner in order to do any of these things.

2 Australian Copyright Council T-shirts & Copyright G119v01 2 When is copyright infringed? It is an infringement of copyright to reproduce all or a substantial part of copyright material without the copyright owner s permission and if an exception does not apply. What is a substantial part is not always clear, it has less to do with the amount that is used than it does with the quality of the part that is used. Courts look at whether the part that is used is an important, essential or distinctive part of the original work. If you wish to use just a part of someone else s copyright work on your T-shirts, you may still need permission to do this. Making a few changes to an image may still mean you need to seek permission. A good rule of thumb is, if you want to use it, it s likely to be a substantial part. Further if you want to sell your T-shirts we recommend taking extra care in obtaining permission. Or you might want to use images that are not protected by copyright because they are too old. See our information sheet Duration of Copyright for guidance on the term of protection. Using quotes In some cases, you may wish to reproduce a quote on a T-shirt. Whether or not this raises a copyright issue depends firstly on whether the text you are quoting from is sufficiently original for copyright protection in its own right. In the case of a short, one line statement, this may not be sufficiently original for copyright protection. However, something more lengthy is likely to be protected. If the material is protected, then you ll need to decide whether the part you wish to quote is a substantial part of the original text or not. If it is arguably an important, essential or distinctive part of the original text - however small - you should seek permission. We discuss these issues in more detail in our information sheet, Quotes & Extracts. Exceptions The Copyright Act allows for particular uses of copyright material without the need to seek permission. In most cases, these exceptions will not apply where you want to print other people s copyright material on T-Shirts. If you make a parody or satire of someone else s material, there s a possibility you could rely on the fair dealing exception for parody or satire. However, you need to demonstrate that your use is fair in all the circumstances. It may not be fair to profit off someone else s work without paying an appropriate licence fee. The exception is likely to be more relevant in a case where you want to make T-shirts for non-profit purposes. If you want to rely on the exception, you should get specific legal advice. For detailed information, see our information sheets Fair Dealing: What Can I Use Without Permission? and Parodies, Satire & Jokes. What are the consequences of copyright infringement? The copyright owner can take action in the event their copyright material is infringed on T-shirts. Some of the remedies a court might award include damages, an account of profits (this is essentially payment of some or all of the profits made from sales), or delivery up of the infringing articles. Additionally, where copyright infringing goods are sold on a commercial scale, there may also be criminal sanctions. For more information, see our information sheet, Infringement: Actions, Remedies, Offences, & Penalties.

3 Australian Copyright Council T-shirts & Copyright G119v01 3 Getting permission In order to use other people s copyright material on your T-shirts, you can either obtain a full assignment of the copyright (such that you control all the rights), or you can obtain a licence (permission) to use the material. Generally, if the copyright owner assigns you the copyright, you should expect to pay more than in a case where you just obtain a licence. For more information, see our information sheet Permission: How to Get It and Assigning & Licensing Rights. When obtaining permissions, it s important that the person granting you the rights either owns copyright in the material, or is in a position to grant you the rights. If you print material on T-shirts that infringes someone else s copyright you will be liable. Given this, it s a good idea to obtain a warranty and an indemnity from anyone supplying you with copyright material for your T-shirts. This is essentially a promise that the person either owns, or is in a position to grant you the rights to use the material, together with an agreement to indemnify you against any loss you may suffer should there be any copyright issues relating to that particular material in the future. Sourcing material from the internet The fact that you find copyright material on the internet does not mean you can use it without permission. If you see material on the internet that you want to use on your T-shirts, you should contact the website in order to find out who owns the rights. If the website proprietor doesn t own the rights, it should be able to point you in the right direction. You should also be aware that sometimes copyright content is published on the internet without the copyright owner s permission. Therefore, you should exercise extra caution when sourcing material in this way. If you find material on the internet that has been released under a broad licence that you wish to rely upon (e.g. a Creative Commons licence), you ll need to ensure that the terms of the licence are suitable for your purposes. For example, a NonCommercial Creative Commons licence will not be suitable where you want to sell T-shirts. For more information about Creative Commons, see our information sheet Creative Commons Licences. Moral rights Creators of copyright works have moral rights in relation to their works whether or not they also own copyright. These include a right to be attributed as the creator, to not be falsely attributed, and to not have the work treated in a derogatory manner. If you enter into an agreement to use copyright material on your T-shirts, it s a good idea to obtain a written consent from the creator specifying whether or not you will attribute the person, and which permits you to make alterations to the material if required. See our information sheet Moral Rights for more information. Copyright and design protection Copyright may protect a unique item of clothing as a work of artistic craftsmanship. However, a standard T-shirt is unlikely to be enough. The item would need to have a particularly unique design or construction. If you wish to mass-produce a functional item that is protected by copyright then you should consider registering it for design protection. This is another area of intellectual property law that protects the look and feel of functional items. The reason you should consider design protection is that you can lose copyright protection over the three dimensional aspects of a functional item if it is mass-produced. Therefore, we recommend you get specific advice before mass-producing a particularly unique item of clothing. However, this is unlikely to be relevant for a standard T-shirt design. Any artistic work printed onto a T-shirt will be protected by copyright in its own right. If this is printed onto the surface of a T-shirt, you will not lose copyright protection in the two-dimensional image just because the T-shirt is mass-produced. For more information, see our information sheet, Designs: Legal protection and the website of IP Australia: There

4 Australian Copyright Council T-shirts & Copyright G119v01 4 also exists a useful website called Fashion Rules, which discusses intellectual property protection for the clothing and fashion industries: Enforcing your copyright If you find that someone is selling copies of your T-shirts without permission, then you may be able to take action against the other party for copyright infringement. In order to take action, you will need to either be the copyright owner of the material or an exclusive licensee. For further information, see our information sheet, Infringement: what can I do? Frequently Asked Questions (FAQs) I ve found some images on the internet without a copyright notice. Does this mean I can use them on my T-shirts without permission? Not necessarily. In order to get copyright protection, you don t have to use the copyright notice. Unless the copyright owner specifically states you can use the images, you should assume you need permission. I gave permission to a company to print my artwork on a line of T-shirts. Will I lose my copyright protection because the T-shirts are now being mass-produced? No. If you own copyright in a two-dimensional artwork, you will not lose your copyright protection if it is merely applied to the surface of a functional item that is mass produced. I want to alter someone else s artwork and print the altered work on T-shirts. Do I need permission? You will generally need permission if your new image features any important, essential or distinctive part of the original artwork. Someone is reproducing my photos on T-shirts without my permission. What can I do? If someone else is printing your photos on T-shirts without permission then this is likely to be an infringement of your copyright. You should think about what you want to happen. You might try negotiating with the other party on an informal basis to see if you can resolve the issue. If not, then you may need to take further action. See our information sheet, Infringement: What can I do? Further information and advice For further information about copyright, and our other publications and seminar program see our website:. If you meet our eligibility guidelines, a Copyright Council lawyer may be able to give you free preliminary legal advice about an issue that is not addressed in an information sheet. This service is primarily for professional creators and arts organisations but is also available to staff of educational institutions and libraries. For information about the service, see /legal-advice. Reproducing this information sheet Our information sheets are regularly updated - please check our website to ensure you are accessing the most current version. Should you wish to use this information sheet for any purpose other than your reference, please contact us for assistance.

5 Australian Copyright Council T-shirts & Copyright G119v01 5 About Us The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, we represent the peak bodies for professional artists and content creators working in Australia s creative industries and Australia s major copyright collecting societies. We are advocates for the contribution of creators to Australia s culture and economy; the importance of copyright for the common good. We work to promote understanding of copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers. We provide easily accessible and affordable practical, user-friendly information, legal advice, education and forums on Australian copyright law for content creators and consumers. The Australian Copyright Council has been assisted by the Australian Government through the Australia Council, its arts funding and advisory body. Australian Copyright Council 2014