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Free Advice Fridays: Last week, t-shirts & trademarks. This week, t-shirts & copyrights.


Last time, we gave you this hypothetical question from Hypothetical Client:

I’m confused. What’s the difference between trademarking and copyrighting? I have a line of t-shirts, but I don’t know whether to apply for a trademark or register a copyright to protect them. If we apply for a trademark, will that protect all the designs on the t-shirts against knock-offs?

- Hypothetical Client

We broke down the question into three discrete parts:

1. what does a trademark registration do?
2. what does a copyright registration do?
3. how do knock-offs and counterfeit goods figure into this?

Last week we explained the practical function of a trademark and the purpose of registering trademarks.

If you’ll recall, HC had been using the trademark HCTM as the brand identifier of a line of well-crafted t-shirts made of organic cotton. Baddy&Co came along and started using the confusingly-similar trademark HTCM as the brand identifier of a line of poorly-crafted t-shirts made of a fabric that caused unsightly rashes. Baddy&Co’s commercial activity overlapped Hypothetical Client’s established circle of trademark rights.

This week we’re covering this part of the question:
what does a copyright registration do?

When Hypothetical Client talks about protecting designs on the t-shirts against knock-offs, HC is most likely talking about protecting against infringement of the graphics on the t-shirt. “Knock-offs” can also mean counterfeit goods, which is 99% not related to copyright protection. We’ll cover counterfeit knock-offs next time.

In general, infringement occurs when somebody else’s activity overlaps your established rights. If you wanted to visualize it, you could think of your bundle of established rights as a circle, and an infringer’s activity would overlap partof the “fringe” of your circle, like in a Venn diagram.

When we talk about copyright infringement, we are usually talking about someone else making unauthorized copies of your copyrighted material.

Way back in the day, if somebody wanted to copy something, it wasn’t too much of an issue because they had to do it manually – a long and laborious process.  We’re talking pre-printing press here, which wasn’t even invented until around 1400AD.

Before the printing press, each image was handmade, and each book was copied by hand. Libraries were relatively rare and the catholic church had a heavy hand in the access to printed information.

Can you imagine hand-copying an entire book today? People used to do that in places called scriptoriums (I guess technically the plural is scriptoria).

As the printing press became all the rage, each press had to be licensed by and registered with the government. The government essentially controlled who printed what because uncontrolled information in the hands of the general population is a dangerous thing!

I won’t draw any parallels between the licensing of printing presses in the 1550s and the US government limiting public access to taxpayer-funded court records and congressional research.

Although the history of copyright is fascinating and rife with political, religious, and socio-economic intrigue, let’s fast-forward a little bit so we can get to contemporary copyright issues, which is what our Hypothetical Client is mostly concerned with.

“Copyright” literally means “the right to copy.” It is available for creative works in a fixed form. Copyright protection is not available to all work in a fixed form – the work must be original and “minimally creative.”

Copyright protection does not extend to ideas, procedures, processes, slogans, principles, or discoveries.

A copyright registrant has a temporary monopoly on the reproduction and distribution of their material. Congress granted this temporary monopoly in an effort to stimulate innovation, with the idea being that if people had no opportunity to profit off of or make a living from the work they put into their material then there would be no incentive for people to put time and effort into creating anything.

Despite Disney’s efforts to the contrary (see the Mickey Mouse Protection Act of 1998), copyright protection for original, minimally-creative works was not intended to be perpetual. It is intended to be temporary, and is intended to benefit the author who created and published the material – not the author’s next seventeen generations of heirs.

OK, so why register a copyright?

A copyright registration by itself won’t prevent people from ripping you off – but it will give you some recourse if you discover that someone like Baddy&Co has copied the original, minimally-creative designs that you published on the front of your t-shirts.

Like trademark registration, a copyright registration will “put the world on notice” that you are the author of the designs. If someone wants to use your designs, the copyright office’s registration catalog will kindly provide your contact information so a potentially licensee (licensee = someone who wants permission to use your material) can contact you about licensing your designs.

If a scurrilous cad like Baddy&Co decided to lift your designs without your permission, then copyright laws (specifically, 17 USC 504) provide for some nifty statutory damages.

As a copyright owner, you can choose to claim your actual damages for the injuries you suffered by virtue of Scurrilous Cad’s infringement, OR you can choose to claim statutory damages. Statutory damages for infringement of any one work is not less than $750 nor more than $30,000 EXCEPT if the infringement was willful, in which case statutory damages can reach up to $150,000.

Compared to trademark registration, which can be tricky, copyright registration is easy. Nowadays you can register copyrights online with the US Copyright Office at copyright.gov.

To recap:
- As we learned last week, trademark registration protects your brand, which relates to the overall quality of the products you offer for sale under your trademark.
- Copyright registration protects your exclusive right to copy and distribute the creative designs you use to decorate your t-shirts.

Make sense?

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Disclaimer: These articles are for information only and do not constitute advice particular to your individual legal situation. Nothing on this site creates an attorney-client relationship between you and Heraty Law PLLC. The information on this site is general only, and you should not act upon this information without consulting with an attorney. If you send any confidential information to us and you are not an established client of ours, we may not be obliged to keep the information confidential.



posted on Friday, June 12th, 2009 at 12:00 pm and is filed under 2009, 2009-june, apparel, copyright, faf, free advice fridays. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

One Response to “Free Advice Fridays: Last week, t-shirts & trademarks. This week, t-shirts & copyrights.”

  1. sheila peevers contributes:
    September 20th, 2009 at 5:02 pm

    I need to know what the law is on shooting a television commercial and dressing up the actors in branded tshirts.

    I would also like to know what the law say’s on using the end line and tune of someones song on a television commercial.

    I would also like to know, what the law says when a dj plays other people’s songs in a disco.

    I would also like to know, what the law say’s on using someone’s map in a televison commercial.

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