Copyright and Trademarks are many times very hard to understand, and research. Many times when we are doing a lettering, calligraphy, or craft piece and want to add a cool quote we see online we just do it. But could that get us in trouble? Today I want to talk exactly about this and when we should stay away from quotes.
Now that we got that out of the way, let's talk more about this all these terms, what they mean, how we can protect our work, how we can stay out of trouble and how to look in the TESS database of the Trademark Office website to make sure we are in the clear.
A cautionary tell before we go into details, when I started selling my artwork back in 2013, I had absolutely no idea about trademarks, right of publicity, and infringement on likeliness. And only a few months down my “business owner” path, I had a rude awakening into what I could legally sell and what was not allowed.
Now I also want to point out that while you want to protect yourself from using quotes or work from others without realizing it. Even if you come up with your own set of words, the frivolous trademark scene is also FULL of people wanting to corner the market, by registering well-known sayings and even just single words, so that they can manipulate and have total control over the market. (more on this below)
Now more than ever knowing about Trademarks, Copyright, and how to protect yourself is extremely important!
You have to do your research, you have to make sure the words you are lettering or using to describe your items are not trademarked, a brand, or have the likeliness of an Author, Singer, or Sports Team to name a few.
See, making your own art from scratch, while it is “your” original art, if you are using any of the ones I mentioned above and are making a profit from it, can get you into deep, deep trouble.
So I want to go deep and share everything I wish I had read before I hit publish on my first items for sale.
In this post I will cover:
- What is Intellectual Property?
- What is Copyright?
- What is a Trademark?
- What is the Right of Publicity?
- What is a Copyright infringement?
- What is a Trademark Infringement?
- How can you protect yourself?
- Trademark Databases
- How to look on TESS for trademarks
I know that the terms Copyright and trademark might seem like the exact same thing if you have not done reading about it, so if you feel overwhelmed, that is completely normal.
I was right in your feet a few years ago.
This is why I am writing this post, my hope is to help point you in the right direction if you need help regarding this and help you understand the very basics we need to know as Artist.
What is Intellectual Property?
Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names, and images used in commerce.
Intellectual property is divided into two categories:
- Industrial Property: includes patents for inventions, trademarks, industrial designs, and geographical indications.
- Copyright: covers literary works, films, music, artistic works (e.g., drawings, paintings, photographs, and sculptures) and architectural design.
The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization – WIPO (1).
The two most important terms of Intelectual property and the ones that most often get confused are Copyright and Trademark.
They are though, extremely different, they are even so legally distinct that they are managed by two different offices within the federal government. Trademarks fall under the auspices of the U.S. Patent and Trademark Office, while Copyrights are granted by the U.S. Copyright Office.
They also protect distinct creations. Generally, Copyrights protect creative or intellectual works, and Trademarks protect commercial names, phrases, and logos.
What is Copyright?
Copyright is the exclusive right given to the creator of a unique creative work to reproduce their work, usually for a limited time.
Copyright laws grant authors, artists, and other creators protection for their literary and artistic creations generally referred to as “works”.
In the USA, copyright protection is outlined in our constitution. But as this article on Legal Zoom explains, the founding fathers let a whole a lot to be left to interpretation.
So, over the year lawmakers and courts have detailed more the laws involved in copyright protection.
The creators of works protected by copyright, and their heirs and successors (generally referred to as “right holders”), have certain basic rights under copyright law.
The right holder(s) of work can authorize or prohibit:
- its reproduction in all forms.
- its public performance and communication to the public.
- its broadcasting.
- its translation into other languages.
- and it's adaptation.
In order to copyright a piece of work there are also some conditions that the work must meet in order to be registered:
- Original: in order to register your work, the pieces have to be original and not a derivation of any other registered work.
- Tangible: in order to copyright your work, it must be “fixed in a tangible medium of expression.” While that can be a little confusing. It’s a very important part. Basically, the work must be established in some fixed form, such as a book, map, chart, print, dramatic work, sculpture, film, sound recording, or computer program.
While it’s true that you have the copyright of all your art the moment you create it, this does not hold in court, so in order to defend your art against copyright infringement, you need to register with the U.S. copyright office.
Copyright registration is the only way to “really” prove ownership, and it’s the only legal evidence you need to bring suit in Federal court in case of infringement.
Works covered by copyright include, but are not limited to: novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps, and technical drawings.
What is a Trademark?
A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company. In the USA the agency in charge of them is the US Patent and Trademark Office.
As Wikipedia explains: “A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks”.
Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. Over the years, these marks have evolved into today’s system of trademark registration and protection.
The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs.
Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services or to authorize others to use them in return for payment (this is called licensing).
The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection is legally enforced by courts that, in most systems, have the authority to stop trademark infringement.
Common trademarked things you should not use in your Art
Most brands have their names trademarked, so to start safe you should stay away from any brand name, this also includes:
- Disney characters
- Sports teams
- Movie and series titles
- Celebrity names
- Music titles (most labels companies or artist trademark song names)
While “derivate work” is one way to “be inspired” by other Art, if you want to be safe, I would just recommend you to not try to look for loopholes when it comes to products you are creating.
The Trademarks system is intended to protect consumers, by distinguishing the source of goods of one company from another and help to prevent other brands to emulate the protected mark, but there are some serious flaws in the current system that we have to cover.
The flaw in the current Trademark system
Ornamental use of a mark is not trademarkable, this means that anything that is not a business identifier, should not be allowed to be a trademark.
But this happens SO OFTEN, and it’s really frustrating. This is known as frivolous Trademark.
This is one of the worse flaws of the current system and it has unfortunately been exploded by many businesses (small and big).
What is the game? Trademarking ornamental quotes, sayings, or words. So they can have complete monopoly over that phrase and eliminate all the competition.
This is extremely common is T-shirt based business, and especially in the “mom” niche, companies with sayings like “raising boys”, “raising tiny humans”, “raising girls” and many other's have trademarked these overly popular words to take all the competition out of the market and it's honestly HORRIBLE!
And the worse part is that most of them enforce their trademarks outside their registered categories, (especially on Etsy, because trademark claims have no way to be fought, unlike copyright claims) So they take down every listing they find of products with those words.
I've had a few of those takedowns and they are so frustrating because I was selling something with those words way before those trademarks were filed. (I was first in commerce, so while I have ground to try and have those trademarks revoked, I just don't have the energy or resources to start a legal battle over a single design, but that's exactly what they are counting on)
This has become a huge deal in the Print-on-demand business, and if you want to read a little bit more about this issue check this post.
A few years ago, it was not that bad, but currently, if you want to sell (especially t-shirts) it's a battlefield!
As I mentioned, there are so many “everyday phrases” and words that are trademarked in the most popular categories and therefore forbidden to be used in commerce (in the registered categories), no matter the design you create.
I am part of the Facebook group Trademark Watch Dawgs (and if you are worried about this, you should join too)And one of the fights I saw live was against the registering of “Mama Bear” this was such a good stand against frivolous trademarks, but as encouraging as it is to have some of them being opposed, there's so many frivolous trademarks live and so many that are trying to get registered every day.
If you want to join the fight, join the group below (they also have a Patreon to cover some of the expenses of preparing Letters of Opposition – LOP – and to keep a VA to help with checking for applications)
A small sample of words that you should be careful about using because of the nature of the registrations or the way they are being enforced are:
- Team bride
- Because Kids
- Salty Vibes
- Mermaid life
- Country girl
- Raising boys, Raising girls
- …and so many more!
Legitimate trademarks that you should avoid
There are some common words that we should avoid using on any product for sale (this includes descriptions and tags) because they are Trademarked. Some companies allow the use of their marks as long as you identify them, but you should always check them because not only terms change, but also the ways they might allow their use.
Some of the most common words we should avoid to not get in trouble are:
- Onesie → Instead use: Bodysuit
- Koozie → Instead use: Can Holder
- Bandaid → Instead use: Adhesive bandage
- Popsicle → Instead use: Freezer Pop
- Post-it → Instead use: Sticky note
- Sharpie → Instead use: Permanent Marker
- Frisbee → Instead use: Flying Disc
- Bubble wrap → Instead use: inflated cushioning
- Shabby Chic → Instead use: Cottage, Country
- Tiffany Blue → Instead use: Turquoise, Bright blue
- Chapstick → Instead use: Lip balm
- Jeep → Instead use: Adventure car, compact sport vehicle
- Ping pong → Instead use: Table tennis
- Polaroid → Instead use: Instant camera
- Velcro → Instead use: Hoop and loop fastener
- Ziplock → Instead use: Zipper storage bag
What is the Right of Publicity?
The right of publicity sometimes referred to as personality rights, is the right of an individual to control the commercial use of one's identity, such as name, image, likeness, or other unequivocal identifiers.
This right is traditionally associated with celebrities because the name or image of a famous person is used to sell products or services.
So while there could be a piece that you want to do about an actor or celebrity, and their name might not be trademarked, but you should be aware of their right of publicity and that you might be infringing and profiting from their likeness, without realizing it.
If you want to read more about it, check this post in Nolo.com
What is a Copyright Infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
If you are using material that is not your own, or that you do not have a license for, you are risking copyright infringement.
I found this post that explains copyright infringement in-depth, in that article you can also see some examples and tips on how to avoid it that include:
- Assume that there’s always Copyright
- Read and research before using an IP that is not yours
- Understand the nuances of Fair Use
- Source materials from the Public Domain
- Create your own or pay someone for the original work
How can you protect yourself?
During my research I came along this great article written by Bruce E. Burdick on the Use of Famous quotes and also AVVO‘s list of questions about the use of quotes as the base of your work, this was super helpful because the ones responding are real lawyers specialized on the subject, what I learned from reading many -many- questions and all their answers is that:
- If you are selling a product using someone's quote, you are not just using the quote but also the likeness and name of the author, so it's not just an Intellectual Property issue, it's also a Right of publicity and many cases also Trademark.
- Depending on the date some work could fall into the “Property of the people” category, like in the case of Mahatma Gandhi’s work (read the article here)
- To be safe when using someone else's work as your inspiration is best to contact an Intellectual property Lawyer and discuss the author, quote, reference, and how you can request a license or identify who you should stay away from.
- If you want to be safe, don't use other people's words and when creating your own, do a Google search and see if someone else is using them already, be especially careful to Trademark (misuse of trademark “slogans” or short phrases can also get you into big trouble)
Can you use other people's quotes?
I would either advise you to stay away from them, get a license from the rightful owner OR research thought to see if they fall into the Public Domain.
So quotes, just like a photographer's photos or the painting of an artist, are the intellectual property of the authors, each quote is different depending on the author, the year of publication and the source of the quote (movie, book, interview, etc).
Sometimes people think that because it's just words and there is no tangible good, there is no copyright protection to worry about, BUT that's where Trademark and Right of publicity can come into the game.
In many cases searching for the person or organization that holds the copyright and right of publicity of a quote/name can be super frustrating, but it would be even more frustrating to face a lawsuit for infringements to copyright, intellectual property, trademark or right of publicity, right?
So my recommendation to other artists that base their work on Quotes is to do the full homework, see who holds the copyright, ask for permission, or simply come up with your own wording for your art pieces (so much more rewarding!)
If you are living and selling in the USA, the database that you should be looking at is TESS.
One thing to note is that USA Trademarks laws only apply to you if you are selling and/or living in the USA. So basically wherever you are conducting business is where the laws would apply to you. But this can be a little tricky if you are selling in international markets.
If you get a notification about someone claiming infringement in an international marketplace, you need to ask them for proof of registration in your respective country, and if any legal actions are to be taken, your countries laws for Trademark (or Copyright depending on the case) will be the ones that should be applied.
So, if you sell and/or live outside the US, you will have to find Trademark databases for your respective country. I collected some of the most popular countries of residence for my readers below, just click on each link to visit those databases.
- Trademark database for the United Kingdom
- Trademark database for Canada
- Trademark database for Australia
- Trademark database for Brazil
WIPO – The Madrid Protocol
WIPO is the World Intellectual Property organization and they not only offer. arrest database (linked below) but also are the ones that manage the Madrid Protocol.
The Madrid System is a convenient and cost-effective solution for registering and managing trademarks worldwide. File a single application and pay one set of fees to apply for protection in up to 122 countries. Modify, renew, or expand your global trademark portfolio through one centralized system.
- WIPO Global brand Database: This database allows you do a global search for brands and trademarks that comes very handy when wanting to register your brand or do trademark research, as the name implies it is global and a great way to start if you are not sure about the location of a trademark.
How to look on TESS for trademarks
Searching for current and newly applied trademarks in the USA while not a complicated process, it can be a little overwhelming because the TESS database search is not very user-friendly. So in this section, I will go over step by step on how to perform a quick search.
1 – First, go to the TESS database at the US Patent and Trademark Office online website.
2 – To search for a quote or simple words, what you want to do is go to “Basic word mark search”
3 – In the text box, you can enter the words you are looking for, make sure that you keep the “Plural and singular” option, so you can get more results as well as the “live and dead” this means that it will show the results of active and non-active trademarks.
There are many reasons why a trademark could be inactive or “dead” but the most commons would be for expiration or for failure to register.
Once you input your query click on the “Submit Query” button to see the search results.
4 – If you get a result, you should pay close attention to some of the information that is displayed, although it can be a little confusing, some of the most important information to look at is:
- Word mark: This is the exact wording that has been registered, or that it’s in the registering process. It’s good to check in case there are similar words that could be registered as well.
- Goods and Services: This section is probably one of the most important because trademarks have to be applied for specific categories. In my case, HowJoyful is protected in online Calligraphy posts and instructions, so this means that no other brand can sell or offer my same goods and services under the name HowJoyful. Marks can be registered for a specific category of products, so you can *technically* use the mark for a different product as long as there is no likelihood of confusion. So knowing the category is VERY IMPORTANT.
- Owner: It’s also important to know who owns the mark in case you are looking to license the wording, or need to get in contact with the owner of the mark.
5 – If you want to see more details, including the documentation in the application (this is useful when checking to see if it’s a legitimate registration, of it’s ornamental) you can click the “TSDR” button, there you can see all of the information about the application.
One thing that most businesses get wrong is that Trademarking a word does not give them total control over it.
For example, I have the mark for HowJoyful, but this does not mean that I am going to start enforcing it by issuing takedowns to everyone using HowJoyful or similar words in their products or tags, I can only protect MY registered category for infringement or likelihood of confusion. That's it!
6 – Some of the most important information when checking a mark, is to check if it’s live or not. You can see that if it has the seal graphic is a live mark, it will also say Status: Registered.
You can also check all the documentation associated with a mark by going to the “Documents” tab.
7 – If the term you are looking for has no registrations (or attempted registrations) you will see the message as sown below:
The legal part of all this can be very confusing because each quote and author *might* have a different Copyright, Trademark, or Right of Publicity.
So each one should be researched and “cleared” in order to be safe to use. And trust me I've tried to do this research myself and it has been crazy, so an Intellectual Property Attorney is the right person anyone that wants to do this should consult with.
In my personal case, I've removed every piece of artwork that was based on quotes and I've only re-add them once I've cleared the quote/saying. In the case of my first Calendar, I decided to use things that I've come up with instead of quotes to avoid any problems, and this process has been even more fun than working based on quotes.
Below I've listed a few resources to help out with your own research, I really wanted to spread the word about this issue and if you could as well, it would be awesome!
- Copyright Law of the United States: The online version, they have each chapter as plain text or PDF (that you can save to keep reading later)
- Intellectual Property for Business at WIPO: Great site to find answers to real questions about IP and your business.
- Quote Investigator: A great blog that helps find out the real author of quotes to really know if they are “public domain” or what the author holds the intellectual property to them.
- Copyright Term and the Public Domain in the United States: This is a document I found in the Cornell University Copyright Information Center, the site is to help with the legal aspects of the University, but in their resources page they have a lot of great information.
- (1) WIPO – What is intellectual property PDF – Here you can read in a super reader-friendly about Intellectual property, Copyright, Trademark, and Patents.
I hope this post can help other's so they can make informed business decisions because even if you are selling only on craft fairs, your own website or Etsy and consider yourself as “not even a business” – if you make a profit, you are a small business! – And as such, people that have the copyright or trademarks of those quotes or brands you might be using can come after you, and none of us want that :)
Information is power =]
So do your research and learns from my own experience, now I know that I have to be more careful when picking up sayings and even If “I came up with it” chances are that someone else also did, so Google it anyways ;)
If you want to save this for later just pin any of the images below!
I hope you all have a wonderful day!