# Legal Questions on Copyrights of Custom Jobs



## TeedUp (Apr 22, 2020)

I'm sure this has been covered somewhere, but I' not sure how to dig it out.

Clearly, if a decorator is creating a design for resale, it is incumbent upon them to know if they are violating a copyright or trademark.

Now if a customer comes to a contractor with a design the contractor has never seen before and has no reason to question the customer's rights to reproduce the design, does the contractor have a duty to ascertain whether the customer carries the rights or permission?

If so, and if the customer claims they do have the rights/permission, is the contractor off the hook (and presumably they should get it in writing from customer)? Or does the contractor need some proof/documentation from the rights holder?

And in the most egregious scenario, if the contractor has reason to suspect or believe the customer does not hold the rights or permission, does that change the answers to the above?

Obviously, I'm most interested in US law, but other laws could be interesting to hear as well.

Also, I'm not looking for a morality argument, I'm just wondering about the legalities.


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## JynxDezyns (Mar 7, 2019)

Ignorantia juris non excusat - Wikipedia







en.wikipedia.org





Put plainly, believe nothing you are told until you can confirm it yourself as you are as incumbent as they are, it doesn't matter whether they're trying to or have deceived you or not, they may well be completely ignorant of the laws themselves.


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## TABOB (Feb 13, 2018)

TeedUp said:


> Now if a customer comes to a contractor with a design the contractor has never seen before and has no reason to question the customer's rights to reproduce the design, does the contractor have a duty to ascertain whether the customer carries the rights or permission?


The clue is in the word "copyright"... Who has the right to copy (in this case print) the work.



TeedUp said:


> If so, and if the customer claims they do have the rights/permission, is the contractor off the hook (and presumably they should get it in writing from customer)?


If the printer has never seen the work before, and has no reason to believe the customer is not the copyright holder, then a signed declaration by the customer should suffice, and this is what most POD companies do.
Larger companies like Amazon, do go a bit further and have bots checking for trademark and copyright violations in their POD listings, but we all know their marketplace is full of gray-market and even counterfeit goods, especially by small sellers selling random stuff.
If you look at the reviews for any popular big brand t-shirt, you will find complaints of prints fading. Genuine big brand shirts will not fade in the wash.



TeedUp said:


> And in the most egregious scenario, if the contractor has reason to suspect or believe the customer does not hold the rights or permission, does that change the answers to the above?


Of course it does, and the ignorance defense will only work once.
Normally you will receive a cease and desist notification, and you cannot do it again.


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## TeedUp (Apr 22, 2020)

JynxDezyns said:


> Put plainly, believe nothing you are told until you can confirm it yourself as you are as incumbent as they are, it doesn't matter whether they're trying to or have deceived you or not, they may well be completely ignorant of the laws themselves.


Confirming it yourself seems rather impractical impossible for a small business, especially with any kind of volume on small custom orders.


TABOB said:


> ...If the printer has never seen the work before, and has no reason to believe the customer is not the copyright holder, then a signed declaration by the customer should suffice, and this is what most POD companies do....


This makes more sense. So do the vast majority of small custom print contractors and websites where customers upload their own designs to print require affirmation of rights by their customers, or do these companies rely on low risk under a certain order size threshold?

And, I know there are probably no lawyers here, but wondering consensus: would something like text in the item description to the effect of "buyer affirms copyright permission blah blah blah" suffice, or would a more explicit assertion required of buyer be more protective of the contractor's liability?

In cases like eBay or etsy listings, getting every one-off customer to explicitly agree to legalese would be a burden on the seller.


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## JynxDezyns (Mar 7, 2019)

Seems like you want the answer that's most convenient to you, which is fine right up until it isn't anymore. Here's a hypothetical to the extreme....

You've never heard of Nike, you make some shirts just like the guy with the "Mike" Nike shirt design he assumed was parody did, from memory he made less than a 100 shirts & was restricting sales to customers that proved there name was also Mike. So lets say he made $15 per shirt for a total of $1500. Now here's the question for you, can you afford to defend it in court & can you afford a similar outcome as him which again if memory serves correct was a $250,000 fine plus costs.

Anyway that's enough from me, but this website may assist you to achieve the impossible much more quickly than you would have thought.

TinEye Reverse Image Search


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## TABOB (Feb 13, 2018)

TeedUp said:


> So do the vast majority of small custom print contractors and websites where customers upload their own designs to print require affirmation of rights by their customers, or do these companies rely on low risk under a certain order size threshold?


Normally included in the T&C people accept when registering, and infringement is a regular occurrence.
POD marketplaces receive cease and desist notifications on a daily basis.



TeedUp said:


> And, I know there are probably no lawyers here, but wondering consensus: would something like text in the item description to the affect of "buyer affirms copyright permission blah blah blah" suffice, or would a more explicit assertion required of buyer be more protective of the contractor's liability? I could see arguing the difference either way.


Have a look at Printful.
A more explicit assertion on every single job will not reduce your liability in my opinion (I'm not a lawyer of course).
Fortunately for us in the UK the "innocent infringer" provision in our law does offer adequate protection. 
Although all unauthorized reproductions are infringements, in the case of innocent infringement damages are not recoverable by the right holder.

This does not apply in the US, and if caught you may be liable to compensation plus legal costs.
The risk is definitely there, but as long as you stay within the ethical path you should be OK.


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## TABOB (Feb 13, 2018)

JynxDezyns said:


> You've never heard of Nike, you make some shirts just like the guy with the "Mike" Nike shirt design he assumed was parody did, from memory he made less than a 100 shirts & was restricting sales to customers that proved there name was also Mike. So lets say he made $15 per shirt for a total of $1500. Now here's the question for you, can you afford to defend it in court & can you afford a similar outcome as him which again if memory serves correct was a $250,000 fine plus costs.


Mike as in Michael Jordan?
Did he stop doing it when notified?
Also, the infringement was probably trademark related instead of copyright, and he was not just a third party print shop unaware of the infringement.
People afraid of their own shadow will never achieve anything.


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## TeedUp (Apr 22, 2020)

JynxDezyns said:


> Seems like you want the answer that's most convenient to you, which is fine right up until it isn't anymore. Here's a hypothetical to the extreme....
> 
> You've never heard of Nike, you make some shirts just like the guy with the "Mike" Nike shirt design he assumed was parody did, from memory he made less than a 100 shirts & was restricting sales to customers that proved there name was also Mike.


@JynxDezyns I bet you mostly sell your own designs and very little custom work. I can't imagine any way a small custom print shop can verify the copyright of every design submitted, there's really no way to do it. And spending time trying will basically guarantee you will lose money. I'll bet even Amazon with all their fancy expensive AI bots have many fall through the cracks

So I don't know the facts of the Mike guy, but if he made 100 shirts to sell he promoted them somehow. Did he put them next to shirts that said Dave and Tom and Steve, or did he only have the ones that looked similar to the Nike product, however bad his memory was? And @TABOB has a good question on if he reacted to or ignored a cease and desist. Chances are they didn't just single him out randomly.


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## TeedUp (Apr 22, 2020)

And why is it called "cease and desist"? Doesn't cease mean the same thing as desist? Oh, yeah, lawyers.


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## into the T (Aug 22, 2015)

i would hazard a guess that it is 'stop now and in the future'

there is always reasonable considerations a judge may or may not incorporate during your trial,
if it is obvious to any layman and you being in the biz printed it, then that tips the scales of justice away from you
but if it is not obvious and you have an sop for custom designs (like tineye, yandex has reverse image search too, etc.),
and you can prove to the judge you did your due diligence then you may find the scales tipping in your favor


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## TABOB (Feb 13, 2018)

TeedUp said:


> And why is it called "cease and desist"? Doesn't cease mean the same thing as desist? Oh, yeah, lawyers.





into the T said:


> i would hazard a guess that it is 'stop now and in the future'


Correct.
Cease = stop (now)
Desist = don't do it (in the future).



into the T said:


> prove to the judge you did your due diligence then you may find the scales tipping in your favor


In the US you are basically relying on judicial restraint and judicial activism because the law is not in your favor, BUT as long as you are following the moral path:
a) The chances of you getting caught for some copyright work you had no idea about are very slim.
b) The chances of the above happening and the copyright holder suing you are even slimmer.
c) Even if both of the above do happen, the judge is likely to dismiss the case against you (judicial restraint / judicial activism).

Again, these are just my opinion, and what I've seen happening in cases I know... I'm not a lawyer.


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## Mako181 (Mar 4, 2021)

This is a sticky subject, I ran a State Prison Embroidery and Garment Decoration Plant from 2006 to 2017 and you cannot believe what even State Government wanted us to do. I had to stay on my toes with every design element that was sent to me. Graphic Artists grab what ever gets their job done and don't seem to worry about the next process in line!


FYI - Did you know that the 4H Logo in all versions has the same level of Copyright as the Seal of the President of the United States!








4-H Name and Emblem


The 4-H Name and Emblem information. For questions about the 4-H Name and Emblem, contact Division Director, Youth and 4-H Shannon Horrillo.




nifa.usda.gov





Just do a quick Google Search and take a look. Be wise and prudent in your business, you can loose it in one dumb moment.

This is the first one that I looked at.






__





Accidental Copyright Infringement...


Copyright infringement occurs when a work is reproduced, distributed, performed, displayed without the express or implied permission of the copyright owner




www.traverselegal.com





*WISE WORDS FROM A COPYRIGHT INFRINGEMENT LAWYER*
“Strict Liability” is a term used to describe legal liability in which a Plaintiff does not have to prove a Defendant’s fault, but simply show that their rights were infringed. Copyright infringement is strict liability, which means you remain liable for copyright infringement even though you did not intend or realize you were infringing a copyright.
One of the most common “honest mistakes” involves cutting and pasting someone’s photos on the internet onto your own website or otherwise use the photos for your own promotional purposes. It’s easy to do and there is a lot of misinformation on the internet about permissible use of someone’s photograph without permission. Even in situations where a business owner contracts a third-party web designer to build their website, both the business and the web designer can be held liable for copyrights violated if they are used on your website. If use of a copyrighted photo is related to commercial purposes, it is almost certain you have infringed. There are uses of copyrighted material called “fair use”, such as use for an educational purpose, which would not subject you to copyright infringement. However, even if you have a good faith, honest belief you are not infringing, if you are found to have infringed you will be liable to pay damages to the owner of the copyright regardless of your intent or belief.

*HIRE A COPYRIGHT INFRINGEMENT LAWYER*
Copyright infringement can be expensive. Under federal copyright law, statutory damages can be up to $150,000 per infringement, plus attorney’s fees and court costs. It is wise to err on the side of caution to ensure you are not violating a copyright in order to avoid infringement because ignorance is not an excuse for copyright infringement. If you have any questions regarding copyright infringement, do not hesitate to contact one of Traverse Legal’s experienced copyright attorneys.


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## TABOB (Feb 13, 2018)

Mako181 said:


> “Strict Liability” is a term used to describe legal liability in which a Plaintiff does not have to prove a Defendant’s fault, but simply show that their rights were infringed. Copyright infringement is strict liability, which means you remain liable for copyright infringement even though you did not intend or realize you were infringing a copyright.


This is the law in the US but have a look at this well known case







Did the copyright owner sue the printer of this movie cover?
I don't think so... He sued the studio.


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