# Is there copyright law grey area?



## mike1w (Jul 9, 2010)

If I were for example to make a shirt that had " I didn't buy this from the world's largest retailer " or one that says " You're fired, right after I get a better hair stylist " would designs like this be copyright infringement.
Images that are referring to, or inspired by, a famous entity, person, or event, but that don't copy the name or trademarked image, are these violatory of the laws? 
I don't include derogatory or threatening designs, because they are a different style, and likely violate some aspect of criminal law, apart from copyright issues. ( such as " the worlds largest retailer should be.... )


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## kimura-mma (Jul 26, 2008)

mike1w said:


> Is there copyright law grey area?


Yes, copyright laws (and intellectual property laws as a whole) have a lot of grey area. But it's a double edged sword. The same grey area you are looking for to make your ideas legal is the same exact grey area that the IP owner will use to file an infringement lawsuit against you. In fact, they don't even need the grey area or even much of a reason at all. Just coming close to infringement is enough to get a cease and desist letter. And unless you can afford to fight it out in court, you will probably abide by the C&D. Big companies know this and take full advantage of it.



mike1w said:


> If I were for example to make a shirt that had " I didn't buy this from the world's largest retailer " or one that says " You're fired, right after I get a better hair stylist " would designs like this be copyright infringement.


"You're Fired" is trademarked by Mark Burnett's production company. So if you are trying to reference Donald Trump and The Apprentice, then I would say that is trademark infringement. The "World's Largest Retailer" may be enough of a generalization to avoid infringement, but as mentioned above, even coming close could get you sued. It's probably best to consult an attorney before proceeding with stuff like this.



mike1w said:


> Images that are referring to, or inspired by, a famous entity, person, or event, but that don't copy the name or trademarked image, are these violatory of the laws?


Images are copyrighted by the person to who took the photo or originally created the artwork. So that's a separate issue from the content of the image. But any use of an identifiable entity, person, event or trademark would potentially be infringement.



mike1w said:


> I don't include derogatory or threatening designs, because they are a different style, and likely violate some aspect of criminal law, apart from copyright issues. ( such as " the worlds largest retailer should be.... )


It really doesn't matter if your use is negative or positive. Any use without license or permission would be infringement.


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## mike1w (Jul 9, 2010)

So how far away would you need to go to avoid infringement. And how broad of a statement is protected by law. Suppose I used a phrase copyrighted by someone as part of a larger work, in context. i.e. " you're fired if you look at me again " So many words, designs, and phrases are widely used outside of copyright. Its nigh impossible to tell, unless you directly copy a specific use or form, what is infringement. Common language, for instance, that also occurs in a name, film, song, or whatever, is that copyrighted? for example " Love hurts " is a common statement, and true sometimes, but also a song title. How would one tell whether or not the use of such words, in and of themselves, is a copyright issue?


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## IYFGraphics (Sep 28, 2009)

The problem with any gray area of IP as to if it is infringement or not is that it's left up to lawyers to pursue/defend and a judge to decide, you can have the best case in the world and a judge have a bad day or not like how your dressed, or how your lawyer presents your case and you will loose regardless.

Even infringement in a gray area where others have prevailed isn't worth getting sued, hiring a lawyer, and getting dragged into court....just like speeding just because others do it is not a winnable defense.

JMHO


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## kimura-mma (Jul 26, 2008)

mike1w said:


> So how far away would you need to go to avoid infringement.


So far away that it's your own original artwork and not copying any existing IP in any way. Anything close will have some level of risk attached to it.



mike1w said:


> And how broad of a statement is protected by law. Suppose I used a phrase copyrighted by someone as part of a larger work, in context. i.e. " you're fired if you look at me again "


There is no percentage or defined line in regards to how much of an existing work you can use that makes it legal as a derivative work or parody. If you create artwork based on existing IP, there is risk.



mike1w said:


> So many words, designs, and phrases are widely used outside of copyright. Its nigh impossible to tell, unless you directly copy a specific use or form, what is infringement.


Designs are eligible for copyright. But words and phrases are eligible for trademark. So searching the USPTO website for existing trademarks is the way to know if you are infringing on an existing mark. Copyright is very very broad because it does not require official registration for copyright to exist. Basically, if you use something that already exists, then obviously someone created it, so there is the potential for infringement.



mike1w said:


> Common language, for instance, that also occurs in a name, film, song, or whatever, is that copyrighted? for example " Love hurts " is a common statement, and true sometimes, but also a song title.


If the phrase is used as a title or in a work of art, then it is technically copyrighted. In some cases, words or phrases are eligible for trademark too. But some phrases are generic enough that it cannot be owned as intellectual property. And even if the phrase is not officially owned, but your usage is a clear reference, then there is grounds for an infringement lawsuit. Yes, this creates a lot of grey area. But that's why we have IP attorneys.



mike1w said:


> How would one tell whether or not the use of such words, in and of themselves, is a copyright issue?


Words are usually not copyright issues. You can look them up on the USPTO website to see if they are registered trademarks. Or you can consult an attorney.


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## mike1w (Jul 9, 2010)

did I open the worm can? Seems like anything that a lawyer can possibly claim to be in any way similar to a copyrighted, trademarked, or registered design, will instantly be attacked legally for a LARGE monetary renumeration(SP?) suit. How can I be sure that something that I seem to have made up in my head not be a reference to something I heard briefly months or years before, and thus be open to a lawsuit? This won't stop me, since I believe most designs I have planned are extremely unique, even the text only ones. I just want to make sure I guard myself, and do so with the least possible financial expense.


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## kimura-mma (Jul 26, 2008)

mike1w said:


> did I open the worm can?


Nope, this can has open for a long long time on this forum. It's a very common topic. And it's good to bring it up and ask questions to learn the most you can. Like you said, you believe your designs to be unique. But even if you were to toe the line of infringement, it's best to do so as an informed decision, not because you are naive to the laws.



mike1w said:


> Seems like anything that a lawyer can possibly claim to be in any way similar to a copyrighted, trademarked, or registered design, will instantly be attacked legally for a LARGE monetary renumeration(SP?) suit.


The "any way similar" part is pretty much correct. The basis for infringement is that the new version creates confusion in the market as being similar to the original. So yes, companies and attorneys can make claims against anything they believe to be similar.

The "instantly be attacked" part is a bit much. It's hard to tell if and when someone may get caught. That's all part of the risks involved. But there are levels of risk. And there are IP owners more notorious for filing lawsuits than others (Disney, NFL, George Lucas, Marvel Comics, DC Comics are a few that come to mind).



mike1w said:


> How can I be sure that something that I seem to have made up in my head not be a reference to something I heard briefly months or years before, and thus be open to a lawsuit?


Research research and research. That's all you can really do. As long as you believe your designs to be original and you cannot find any instances of prior use or ownership, then you should be ok.

If it turns out you unknowingly infringed then in all likelihood you will get a C&D and can work it out from there.


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## IYFGraphics (Sep 28, 2009)

mike1w said:


> did I open the worm can? Seems like anything that a lawyer can possibly claim to be in any way similar to a copyrighted, trademarked, or registered design, will instantly be attacked legally for a LARGE monetary renumeration(SP?) suit. How can I be sure that something that I seem to have made up in my head not be a reference to something I heard briefly months or years before, and thus be open to a lawsuit? This won't stop me, since I believe most designs I have planned are extremely unique, even the text only ones. I just want to make sure I guard myself, and do so with the least possible financial expense.


Mike you have the right plan, as long as it's your original work you should be fine, it's just that a lot of people don't have the same attitude towards IP, or even respect for another persons hard work, Tim (Kimura-mma) is very well versed in IP, take what he says as very good advice, the rest of us...we've just adopted a CYA stance to be proactive when it comes to infringement. 

Hope this helps.


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## Solmu (Aug 15, 2005)

mike1w said:


> So how far away would you need to go to avoid infringement.


If your starting point is someone else's work you will always be in a grey area at best.


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## Solmu (Aug 15, 2005)

mike1w said:


> Seems like anything that a lawyer can possibly claim to be in any way similar to a copyrighted, trademarked, or registered design, will instantly be attacked legally for a LARGE monetary renumeration(SP?) suit.


_Can_ be, but not necessarily _will_ be.



mike1w said:


> How can I be sure that something that I seem to have made up in my head not be a reference to something I heard briefly months or years before, and thus be open to a lawsuit?


Hey, this is the best part! You totally can't! 

Don't educate yourself about subconscious plagiarism if you ever want to sleep at night. Now I just have yet another new thing to be paranoid about.


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