Understanding Intellectual Property - The Basics
At Artfia, we are very excited to support our Artfia creators and to help them produce great custom products and a great experience for their buyers. In our efforts, we are also committed to protecting the rights of individuals and companies with respect to the content published on the Artfia service.
Third party rights are based on a range of laws and legal standards that can be confusing. Those rights are each very different from the other and are often misunderstood. We have created this guide to provide very high-level information about certain types of legal rights and to help Artfia creators understand what is permissible on the service.
We have described some key rights below (trademark, copyright and right of publicity). In reality, the legal analysis for each of these rights is much more detailed and complex than our summary below. Still, we hope the information below is useful and will provide some guidance for creation of permitted campaigns on the Artfia service.
What is a trademark?
A trademark is a word or symbol that indicates the “origin of goods,” meaning it allows consumers to identify the company that is ultimately responsible for a particular product. It is also intended to tell consumers about the quality and desirability of the product itself, so consumers are hopefully more likely to buy it. When a consumer sees the “BMW” mark on a car, there is a lot they will assume about the engineering, comfort and enjoyment they will have driving the car. That connection between the trademark (“BMW”) and the perceived qualities of the product (luxury, power, engineering excellence) has a lot of value in the market. Companies invest a great deal of time and money in developing that association between their mark and the products, because it can have a significant impact on sales. Reputation and brand mean a lot. The value itself is something companies work hard to protect.
What are trademark rights?
The concept behind trademark rights is that the owner of the mark has the legal right to stop people from trading off of the value of the company’s bran d and reputation. They can do so by stopping the use of any confusingly similar trademark. So if an unknown car company wants to use the mark “VMW” to identify their new car, BMW will be able to stop them from doing so based on the similarity of the marks themselves and the goods they are used to identify. Often trademark owners will also secure rights in other related goods that they want to sell – for example, t-shirts.
What does trademark mean for Artfia creators?
Artfia creators are not allowed to use third party trademarks unless they have permission. Artfia conducts preventive reviews of all campaigns to help ensure third party rights are not violated.
Here are a few examples of products that feature trademarked material. These campaigns would be flagged during our review process and terminated. You can hover or tap on a design to learn why it is covered under trademark law.
What if the logo itself isn’t used?
The first example above shows a mark owned by Major League Baseball. As you would expect, all professional and college team logos are clearly protected by trademark. But the legal protection extends well beyond the team name and logos themselves. If a design shows a combination of elements that clearly indicate a particular team, then that design is considered infringing as well. For example, if a shirt that includes a baseball image, a reference to Boston and the colors used by the Red Sox team, the trademark owner would very likely have a claim for infringement.
What’s the best test to use?
As described in the preceding paragraph, courts have prohibited the use of various elements of a brand, even if the exact logo or name isn’t used. So the best way to think about when a design is problematic is whether the design is intended for fans of a particular product or organization. If you look at a design and you know that it is meant for Red Sox fans, then it is very likely that courts would prohibit the use of that design under trademark law.
Copyright has existed for hundreds of years (it even predates the US Constitution). The underlying idea is to give creators of certain works the right to control the reuse and distribution of that work (whether an exact copy or a modified version).
Copyright law says that a work has to be "original" to be protected. "Original" doesn’t mean innovative. "Original" in the legal sense means that the creator didn’t copy anyone else. Under copyright law, you are not entitled to use someone else’s work as a basis for your own. You have to originate your own works, creating them from scratch. For example, in one famous case, a photographer was found to have copied the photograph of another artist even though he used a different model and location. The details of the second photograph were so similar to the first (the look, layout and subject matter) that the court found copyright infringement.
Copyright is intended to strike a balance between freedom to be inspired and protection for those who create. For example, facts are not covered by copyright. Utilitarian works, such as instructions or recipes, are not covered. Everyone is free to use ideas and information. Copyright only extends to the unique expression of ideas, not the idea itself.
Copyright is not intended to limit sharing of ideas and does not cover the underlying idea itself. So the painter of a landscape can’t stop other people from painting landscapes. They can only stop other artists from using their specific painting as a basis for another work.
Though copyright does not cover ideas, to the extent the idea can be expressed in many different ways, each expression will be protected by copyright. But the components of expression, such as individual words and phrases or individual shapes and design elements, are not protected. The expression has to extend beyond the individual components. The simpler the design, the less protection provided by copyright.
What does it mean for Artfia creators?
Artfia creators are not allowed to use third party copyrighted works unless they have permission.
Here are a few examples of designs that include copyrighted works. The first two show well-known content. The last example shows an original work made from scratch.
Right of publicity is very different than the legal rights provided by trademark and copyright and is a much simpler concept. Right of publicity is the right of famous people to control the commercial use of their name or likeness. So Taylor Swift has the right to decide whether her name or face will appear in a product advertisement.
Right of publicity is really a subset of the larger right of privacy that applies to all people. In the context of marketing and merchandise, that means each person is entitled to control the use of their name and image in a commercial context.
In keeping with right of publicity and privacy laws, Artfia will not be able to print shirts that include the name or likeness of any individual, including celebrities, unless we are instructed otherwise by the individual or their agent.
You can learn more about trademark and copyright using the following resources:
- USPTO.gov - The U.S. Patent and Trademark Office site offers a FAQ section, and a search engine where you can check for registered marks.
- Copyright.gov - The U.S. Copyright office offers a helpful FAQ.
- Trademarkia.com - Trademarkia also provides an easy-to-understand FAQ section and search engine.
- Licensing Pages - Many brands and organizations have pages (look for a “Terms” page) that outlines their owned copyrights and trademarks.
- AVVO - A website that allows users to ask for and receive free legal advice from reputable lawyers.