In looking into opening a small business printing t-shirts and other similar
products I have begun researching copyright law. In doing this I have found
that in the context of printing (onto t-shirts, sweaters, bags, hats, ect.)
copyright law and intellectual property protection have become, at least in
my opinion, very complex. Especially today with small screen-printing
businesses being so popular among people who wish to start small businesses.
So now I wish to give several examples and questions that can be raised
with them, along with my own insights into them.
Example 1: T-shirts that say ¡°Everyone Loves An Asian Girl¡± or ¡°catholic
girl¡± or ¡°Irish girl¡± or any other variation of this phrase. I have seen
several companies print the version referring to Asian girls, some showing a
copyright notice next to the phrase, some with no copyright notice. Also
some tweak the way it is printed slightly. The wording may be exactly the
same but the font size, color, and/or style change. Like one shirt having
the phrase printed in black times new roman font, and another printed in red
¡°Asian¡± style (letters composed of brush strokes) font. While some may or
may not also have some kind of design surrounding or placed near the phrase.
As far as I can tell many of these companies are printing the t-shirts
themselves, whether or not all these companies printing the phrase are
paying royalty rights or have some form of agreement with a copyright holder
I don¡¯t know.
Questions and Insights: Under US Copyright law you cannot own a copyright
to any name, title, or phrase. So me saying and using the phrase as an
example does not qualify as copyright infringement, also coupled with the
fact that I am using a different medium, and am not making any financial
gain from it¡¯s use. Trademark law also doesn¡¯t apply with these or most
any other comical phrase you see on t-shirts because they do not advertise
the source of goods, or services. If the name of the company printing them
was ¡°Everyone Love¡¯s An Asian Girl¡± then that might be plausible. But
for companies that make t-shirts with comical phrases this is not plausible
because it would be very difficult or impossible for them to market each
phrase on the t-shirts as to qualify them as trademarks and therefore
entitled to protection. So in what way, shape, or form do any of these
companies have entitlement to copyright protection of this phrase if at all?
Is changing the font in way of size, color, and/or style, or
adding/deleting other graphics, or where the phrase is placed on the shirt
enough to differentiate one shirt from another so it isn¡¯t infringement?
Say two companies print the phrase in the same wording and exact same font
size, color, and style in the same place on the shirt, do either one of them
have right bring charges of infringement upon the other? As I see it, the
only possible answer as to how any of these companies can have any form of
copyright protection is in the form of expression. An idea cannot be
copyrighted and protected, but the form of expression of said idea may be
copyrighted and protected. So do these simple phrases qualify as an
¡°idea¡± and therefore you can own a copyright to them being printed on
apparel? If so, does this also give you ownership of derivatives of
original phrase being printed onto apparel (i.e. Everyone Loves An Irish
Girl/Italian Girl/Southern Girl ect.)? Another possible way for one to
protect ones self in this sense may be unfair competition law, but I have
not been able to find much to concretely apply to this example.
I see this as an important thing to look into and find answers for because
there are so many small businesses printing comical phrases on t-shirts
today it is difficult to tell if a particular phrase has already been
printed before. Even with extensive searches of the internet, copyright,
and trademark databases, there is no way for one to know for sure if their
idea for a comical phrase to print has already been printed. And despite
the enormous popularity and sales many of these comical phrases have,
usually they are still very simplistic. This makes it rather likely that
multiple people in multiple locations can think of the exact same phrase
independent of each other. In searching these forums¡¯ archives I have
found some discussion of this topic, but not much in terms of an answer to
this question. The answers given to people asking if they could copyright
their idea for a t-shirt or bumper sticker seemed to brush it off into the
arena of trademarks and unfair competition law. But things such as these
don¡¯t seem to qualify as either copyrights or trademarks, or at least in
the conventional forms of the two.
If someone does print t-shirts with the same or similar comical phrase, does
that give the original author of the phrase protection under unfair
competition law? How much would the phrase or the way the phrase is written
need to be changed to not be considered unfair competition? Since you cant
own a copyright on a phrase, and since such comical phrases don¡¯t indicate
a source of good or services and therefore are not trademarks, is it just
the form of expression as in printing a comical phrase on t-shirts protected
by unfair competition law? If so how do you originally receive protection
in any form of registration? Do you register the phrase as a design for a
t-shirt, and then only in printing it on t-shirts for sale are you
protected? How far can your protection under unfair competition law reach?
For a very plain example if I where print t-shirts in Wisconsin (where I am
a resident) that read ¡°I went to Madison and bought this shirt¡± would
someone printing and selling shirts that read the same but instead of
¡°Madison¡± they wrote ¡°Milwaukee¡± would that be unfair competition? Or
only if I was selling the same such t-shirts in Milwaukee as well. If it
gives me a form of protection on obvious derivatives of the original phrase
(like just changing the name of the city) would it extend outside of the
state? Especially if the shirts became popular and I would want to start
selling derivatives of the original phrase in other cities around the
Midwest or the whole country, where the name of the city would correspond
with the place it is being sold.
I realize that this is very long and many questions. But I see this as a
very relevant topic of discussion in copyright law in America today. And I
felt only through long explanations and examples (of both real and
theoretical t-shirts) could the issue really be addressed and possibly
answered. When I started looking into the subject it was just to know how
to protect myself legally incase I ever printed something, which I did not
know had already been printed. But it has turned into something I
personally find very interesting and am continually searching for an answer
to.
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