Artists Making Merch Should Avoid Copyright Confusion

Photo by vlad_star

Ars Technica posted an article last month about copyright and tee shirt design that, in my view, jumps past the real story and may confuse a few independent artists out there that they’re operating in some new realm of IP law.

The internet industry sells a message of opportunity, and it is absolutely true that the combination of e-commerce platforms and on-demand production does create new avenues for creators to earn revenue from their work.  Willie Clark’s article describes a network of artists who are currently making at least a portion—if not the lion’s share—of their living from the sale of tee shirts that feature their original designs.  All good.

But in a world without copyright protection, there is not much to stop either a sole actor or a predatory website from appropriating the artists’ designs and selling tee shirts or other merchandise by leveraging exactly the same tools available to the artists.  Clark cites a few artists who are quite sensitive to this issue; and in my view, this is one of the major challenges of internet economics:  it assumes everyone will behave ethically, and when they don’t, the tools easily enable cannibalization of the very same opportunities they create.

Clark’s real focus is on the legal status of sites and/or artists in cases where high-profile, corporate-owned IP may be involved. He asks, “If big media has legal muscle, why can you buy Link racing Harley Quinn on a shirt?” Okay, that’s a sub-head, and Clark can be forgiven for not quite answering the question—especially because there isn’t a general answer other than to say that if you go printing merch with copyrighted material belonging to major rights holders, be careful.  Clark writes the following:

“While there hasn’t been a high-profile case involving a big pop culture IP and an online T-shirt company yet, there have been similar situations. Mitch Stoltz, senior staff attorney with the Electronic Frontier Foundation, pointed to one court case where T-shirts overall had been tested. And in Kienitz v. Sconnie Nation, LLC, the court ruled in favor of a shirt that used another photographer’s photo as the basis for the design.”

The indie artist should not be confused by this statement into thinking that the internet-spawned tee shirt trade has entered some new gray area of copyright law. For one thing, in the Keinitz case cited, the tee shirts are barely relevant. The appellate court refers to the substantial amount of alteration made to an original photograph and to the lack of potential market harm to the original in affirming fair use. The image at issue could have been fixed onto any medium, and the legal considerations would have been almost identical.  But, if the tees had served as a substitute for the rights holder’s licensed—or potentially licensed—merchandise, that would be a very different story, which brings me to the next quote.

“Stoltz also mentioned one other reason companies may be OK with leaving such sites operational: free advertising. ‘This is free marketing for them, and they know it,’ Stoltz said. ’It’s not really good marketing strategy to go suing your fans and the websites that they like to use.’”

This is a familiar refrain from the EFF, and from the larger community of copyright skeptics and outright antagonists. This idea that appropriation serves as free advertising is, for instance, a common rationalization for large-scale piracy. But it’s not an argument that actually carries much weight with most rights holders, least of all the majors. So, if you’re an independent artist, considering making a tee with a Harley Quinn-based design on it, I would not take this “free marketing” message to heart because it almost certainly is not how rights holder DC Comics will consider the use.

A fair use of an illustrated character really has to comment upon the work in a way that goes beyond mere re-interpretation.  Otherwise the use on a tee shirt will very likely be seen in court as counterfeit merchandise—an unlicensed “display” of a protected work. Moreover, characters are very often covered by trademark and copyright, which gets into a whole other set of motivations for the owner to consider enforcement. For instance, trademarks must be enforced or they can be lost, which is not true of copyright.

Likewise, the discussion of the DMCA in the Ars Technica article can be confusing because the DMCA has no bearing whatsoever in the trademark universe and, as Stoltz is correctly cited, has no authority in the world of infringements beyond cyberspace. Tee shirts and other merch are physical media, so the artist, the site, and/or the manufacturer could be liable in a context that has nothing to do with the digital market.

It is certainly true that fair use exists in order to allow artists to comment upon copyrighted works without the rights holder’s permission, and commentary is a critical part of creativity, social discourse, advocacy, etc.  But merch can be tricky, and unless artists want to spend more time thinking about fair use doctrine than making art, it’s probably better to focus on creating original expressions.  And apropos of the top of this post, it would be far more beneficial to the creative community—and society—to figure out how independents can better protect their rights in the digital market than it would be to keep looking for ways to use works belonging to other rights holders.

© 2017, David Newhoff. All rights reserved.

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