# What do you do when you come up with a design and realize someone has something similar?



## Serenity10 (Jul 11, 2010)

You come up with a design and then get ready to sell them and realize someone else has something similar? I sell my items on the internet often and would be selling on the same forum. Not sure what to do because basically they will be very similar.


April


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## selanac (Jan 8, 2007)

The way Copy rights work is you can't copy someone else is design. If you came up with a design, and didn't know you're okay. As long as you can prove you drew it, and didn't copy or as long as they don't protest.


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## Serenity10 (Jul 11, 2010)

I recently noticed a seller who also makes transfers that are the same as a company here where I live. She simply added a picture to it. I didn't think that was ok either. But I suppose it more of a moral issue than a legal one.


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## selanac (Jan 8, 2007)

Well, as another thread said, if she's buying the transfers already completed and then adds the picture she's okay. 

Many websites do nothing more than buy transfers and post those pictures. 

Also, if you change a design by 30% is legally yours. If a company has enough money, they'll fight you tooth and nail, and you'll never make a dime. 

That being said, many people just copy pictures, take their own or re-create it.


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## charles95405 (Feb 1, 2007)

Paul don't fall for that old wives tale about changing a percentage of a design...it is simply not true..if the design is recognizable of someone s work..it is an infringement please don't pass that along as true.


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## divzdesigns (Aug 31, 2011)

Is it your own creation??? You should have saved in different files while creating from scratch. Go ahead and sell it, you have full rights.


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## Eview1 (Apr 29, 2010)

I guess you may have to wait untill the cease and desist order comes... or create your owm work. If it makes me feel uneasy I will not do it. So from your post here you say you "realize someone else has something similar" how do you feel about it? it is your business and you must decide.
good luck in deciding.


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## SickPuppy (Aug 10, 2009)

In the rhinestone industry most designers are using royalty free clip art collections. Most of us are creating rhinestone designs using the same clip art, and most likely the same software, so you can expect to see quite a few design that look alike. Unless the rhinestone design was created from unique artwork then it is not an issue.


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## Liberty (Jul 18, 2006)

selanac said:


> Also, if you change a design by 30% is legally yours.


Ahhhh, I could scream when I hear this. But then again, its on Al Gore's Internet so it must be true, right?

The "test" the courts use is that if the average consumer would be confused by the offending design then it is indeed infringement. Change it, tweak it whatever, if the consumer would be confused by it then you have infringed. Mickey is Mickey, a swoosh is a swoosh.

And besides, ask yourself this, do you have the disposable cash resources to fight off an infringement suit? Do you stand to make so stinking much money that it's worth the risk?

Some marginal infringement is inevitable in the tshirt biz. Most are not done with malice. But in the time it takes to either protect your designs or defend yourself from using the designs of others, you could have created an entirely new line.

Had the pleasure years ago of attending a trade show in Orlando. One of the keynote programs was a Disney presentation about building a brand. Two minutes into the presentation, they called an audience member by name and asked her to stand. She was wearing a homemade applique sweatshirt with a cute little mouse character on it. Her response was, "It's not Mickey, just looks like it." 

Now the interesting point is that they knew her by name! Someone with Disney had seen the shirt, uncovered her name and made a point to call her out. Do you think that the cease and desist letter was there waiting for her when she got home? And heaven help her if they find out she was selling them...

If in doubt, throw it out.


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## GN (Aug 1, 2011)

selanac said:


> Also, if you change a design by 30% is legally yours. If a company has enough money, they'll fight you tooth and nail, and you'll never make a dime.


I JUST had this conversation with a graphic artist freind of mine attending Art School in Florida. She claims she was "taught" in Art class that as long as she changed the art work she took from online she could claim it as her own and she was not infringing. In particular, she was taking photographs from online, and photoshopping them into graphic designs. This was my responce to her:

_____
"Official Government Copyright website:

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)

*How much of someone else's work can I use without getting permission?*
Under the _fair use_ doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, _Reproductions of Copyrighted Works by Educators and Librarians_.

In the above it states that you can ONLY use a portion of any one's work if you are using as commentary, or teaching aid, news etc. Using a portion of someone's work to create your own is illegal. Espeecially if you sell that "new work". 


*How much do I have to change in order to claim copyright in someone else's work?
*Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work,* no matter how much you change it*, unless you have the owner's consent. See Circular 14, _Copyright Registration for Derivative Works_.

*Somebody infringed my copyright. What can I do?*
A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.

What this means is that someone can sue you of course. Current infringement cases award $150k per infringenment. This means if you used two pictures you could be sued for $300k. BUt the really scary part is that last line.. willful infringement could lead to criminal charges." 
____

I think the confusion with the 30% or 60% (I read that somewhere) comes from the definition of "derivitive". A derivitive is a NEW piece of work such as a drawing of a sculpture that comes from an exisiting piece of work. You take a photo from the internet and change it on your own equals derivitive (new) work. 

That new work is *now* copyrightable and the artist (that drew the picture) owns the new copyright to that new work; HOWEVER, the artist of the new work MUST first get permission from the original aritist to create the derivitive. -If the new artist intends the derivitive to be used for comercial use. Educational use is a different ball game. 

I believe, that the copyright laws used to state that "derivitive" was defined as changing more than 60% of the original artwork, thus the confusion.


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## akar (Jul 1, 2011)

Nice post GN - as an artist who creates original work, I never want to see someone use it for their own profit because it takes a lot of blood, sweat and tears. Metallica was right in shutting down free music sites because it takes away from the way that they make their living with original music. If your design is similar to another, well, that's not the SAME as another piece. There were many cubist artists, but a Picasso from that period is a Picasso. As artists, we have infinite creativity and can make new, original designs without losing a beat. If you feel that it's too similar to others then change it up, make it more unique, but just remember that anybody can make a car without exactly copying other cars. Intellectual property often has influences from other artists. Make yours unique and the question is moot. Keep on creating!


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## SickPuppy (Aug 10, 2009)

Use royalty free artwork, read and understand the license. Licenses vary by each site so its important to read the license agreement and you wont have any problems.

If you are downloading artwork from the same place that everyone else is downloading their artwork and you just happen to make a rhinestone template that looks like another person's design , it is not going to be an issue.

Where you will have an issue is to take a rhinestone design that someone else created and just modify that design by moving a few stones around or changing the stone size.


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## Serenity10 (Jul 11, 2010)

The reason I ask us like the soccer mom shirts for instance they all pretty much look a like. I made a design inspired by a vinyl designed t-shirt I saw. Went into corel and designed a shirt. Before I posted a virtual shirt on the selling forum I used I looked at the shirts in that category and found a shirt that I believe is based on the same vinyl shirt but it looks like they actually used the design from that shirt. Now I don't feel comfortable posting mine because though different is very similar. So even though I spent my time designing from scratch just the fact that there is something that 
similar makes me feel like I should scratch the idea. But looking at it I can tell they used their software an copied a shirt that though not rhinestone shirt it's still someone else's design.


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## SickPuppy (Aug 10, 2009)

Serenity10 said:


> The reason I ask us like the soccer mom shirts for instance they all pretty much look a like. I made a design inspired by a vinyl designed t-shirt I saw. Went into corel and designed a shirt. Before I posted a virtual shirt on the selling forum I used I looked at the shirts in that category and found a shirt that I believe is based on the same vinyl shirt but it looks like they actually used the design from that shirt. Now I don't feel comfortable posting mine because though different is very similar. So even though I spent my time designing from scratch just the fact that there is something that
> similar makes me feel like I should scratch the idea. But looking at it I can tell they used their software an copied a shirt that though not rhinestone shirt it's still someone else's design.


You created the design so sell it. Are you trying to say because someone made a soccer MOM design using the same font and soccer ball artwork that you have means no one else can make a soccer MOM design.

If you create a design that I like and I know that it was created from royalty free art, if I can get my hands on that art you can bet I will creat my own design from that artwork.


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## Serenity10 (Jul 11, 2010)

No SickPuppy, that's what I'm asking. That's just an example. I don't know what is royalty free art.  Since I'm just starting out and don't have experience from the other areas of t-shirt making only rhinestones I want to make sure that I don't do anything wrong. But I have a perfect example that I can pull from online. I have a friend who would buy shirts online prior to me getting this equipment. She came to me the other day and found this design online as a transfer, it may be someone's from here. She asked me if I could make this for her. I had seen the regular version and could tell it's something I could easily copy to with my software but I told her I couldn't because it was already being used by someone. I don't know if I was right or wrong but I would rather err on the side of caution. So then a similar thing happened with the shirt I was designing. It's based on a t-shirt I had seen. But I added my own touches and then it seems as though someone else has a transfer based on the same shirt but is an exact copy much like the exampleI have shown. So again I chose not to sell it. I hope my question makes sense. I just am too new to know what is ok and what is not. And I am thankful you guys know a lot more than I do.


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## SickPuppy (Aug 10, 2009)

Serenity10 said:


> No SickPuppy, that's what I'm asking. That's just an example. I don't know what is royalty free art.  Since I'm just starting out and don't have experience from the other areas of t-shirt making only rhinestones I want to make sure that I don't do anything wrong. But I have a perfect example that I can pull from online. I have a friend who would buy shirts online prior to me getting this equipment. She came to me the other day and found this design online as a transfer, it may be someone's from here. She asked me if I could make this for her. I had seen the regular version and could tell it's something I could easily copy to with my software but I told her I couldn't because it was already being used by someone. I don't know if I was right or wrong but I would rather err on the side of caution. So then a similar thing happened with the shirt I was designing. It's based on a t-shirt I had seen. But I added my own touches and then it seems as though someone else has a transfer based on the same shirt but is an exact copy much like the exampleI have shown. So again I chose not to sell it. I hope my question makes sense. I just am too new to know what is ok and what is not. And I am thankful you guys know a lot more than I do.


This is not a complicated issue. You cannot take artwork created by someone else and make a rhinestone design out of it. You will need permission from the original creator to use the image. 

That is why I keep stressing use Royalty Free Artwork. What you need to do is find out where the original image came from and get their permission to use the image for a rhinestone design. don't worry about who else is using that artwork to make rhinestone designs. The creator can allow as many or as few people as they see fit to use their image. 

If the image is royalty free then you are set, if not get permission to use it.


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## Serenity10 (Jul 11, 2010)

Ok, no problem. I don't every copy an image. I always just get ideas from looking around at everything. And I started out just wondering if I should post my design after realizing someone had already created something similar and I've decided that even if it is completely mine and I pulled it out of my brain but someone else has something very close in similarity if become aware of it prior to posting my shirts I will not use it. Simply out of respect. And that you all for answering some other questions I would probably have in the future also.

April


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## lionking444466 (Dec 13, 2011)

I am starting a new t shirt line and have some design ideas I want to use. I want to make sure they haven't been done before so I googled all of them and have found nothing that is the same. However, how do I make sure that it is not similar to something else that has been done? Some of them are very simple and quite frankly I'm surprised no one else has done it. What do you do to make sure? I have integrity in all I do and this concerns me.


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## DivineBling (Sep 14, 2010)

You've done your due diligence. There are lots of variations of the same thing. I have tons of sports mom designs just like just about every other rhinestoner out there. I tried to customize mine so they don't look like everyone else's. If you haven't seen anything like your idea even after researching it, I'd say you're safe. If someone comes to you later and shows you that they've had the exact same design and have it copyrighted, then you can pull it.


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## generalj (Dec 4, 2011)

What are good sites for royalty free clip art? I have looked around and being new to this and not a lawyer how do you tell if you can use the clip art legally for t-shirts?


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## lizziemaxine (Nov 14, 2007)

generalj said:


> What are good sites for royalty free clip art? I have looked around and being new to this and not a lawyer how do you tell if you can use the clip art legally for t-shirts?


There should be information on the website that states what you can or can't do with the artwork. It's tedious to read but important to do so.


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## generalj (Dec 4, 2011)

I have looked at a few sites and read the terms but I'm not always clear that you can use it for t-shirt sales. Thanks I will keep looking


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## lizziemaxine (Nov 14, 2007)

generalj said:


> I have looked at a few sites and read the terms but I'm not always clear that you can use it for t-shirt sales. Thanks I will keep looking


I just looked at www.clipart.com and it states that subscribers can screen print, embroider, etc. these images on tee shirts, hats, bags, etc.


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## freebird1963 (Jan 21, 2007)

Its not gonna be exact by if you want help in finding images try tineye.com. It will search for images out there. I have found a few that. It will list all the sites displaying that image if its in its database.
According to them (Tinyeye)
December 21, 2011
33,324,483 million new images have been added to TinEye, bringing our image database count to 2,067,849,651.

Might help. Might not.

Good Luck


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## sjidohair (Apr 9, 2008)

Clipart .com is another one.

Just catching up on this thread now,


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## katruax (Sep 30, 2010)

Do we all get too worked up over copyright?... I think so. The real truth is it doesn't matter what we think. Copyright is not black and white and that's why we have lawyers and judges. It's ultimately what the judge feels on that day what matters.

I don't even think it's a moral issue... I could show you a hundred examples where "moral" people in my mind are bending the copyright rules a bit but in a way that no one really questions.

An example of why it's not so black and white... Take Sandy Jo's website right... www.rhinestonetemplates.com. She sells TTF Rhinestone fonts... One in particular is called Cassandra Fancy Font. Now if you compare that font to the actual Cassandra TTF font you can see lots of similarities... Some changes but lots of similarities... Now maybe Sandy Jo did get permission to make a derivitive work from the actual Cassandra Font... Maybe she didn't even know a Cassandra font existed and hers just happens to be named and look very similar to the actual Cassadra TTF font.

Now going a little further... She has what she calls RT Zebra Sports. It's 1.5 inches... She doesn't offer it in a 3" size that I can see... Now Matt over at www.therhinestoneworld.com has a very similar looking font but in a 3" size... His too is zebra... So who was first and does it matter?... One could probably make the argument that they were first.... One or the other would have to of been first.. 

If I go and make a TTF font in a Rhinestone font but have the Zebra print going from left to right, instead of right to left angle like Sandy Jo's and Matt's, is that legit?... Depends whos asking I suppose.

One Sandy Jo's site if you look at her fonts while many of the fonts look like other commercially available fonts their names are generally something different than the original.

In contrast though if you look at Matt over the www.Rhinestoneworld.com he's a bit more bold. His fonts are Arial, Arial Italic, BoSox, Cheri, Chow Fun, Cooper Black, Disney etc.... Now maybe all these fonts are in the public domain but someone has to own these no?

Infact according to Wikipedia... Arial - Wikipedia, the free encyclopedia

Arial is a proprietary font.[23] Monotype Imaging owns all right, title and interest in and to the Arial font software, its structure, organization, code including all property rights therein such as copyright, design and trademark rights.[24]

So here you have a perfectly reputable "moral" company offering a font that is a derivitive work of a proprietary font. Now Matt did get permission from Monotype Imaging to resell there font in a different format for Rhinestoners?.. Maybe he did but would any of us thought anything of Matt using this font and creating a Rhinestone font for us even if he hadn't?

Same would be true with the Disney font... That font in particular I'm almost certain is copyrighted by the Disney corporation... 

That brings up a better question entirely... Can we use a font and make a rhinestone template for it and sell it on a shirt?... It's a derivitive work no? Even if we own or purchased the font can we then create a rhinestone template based on a font and sell it?... Seems like a gray area to me?

But that brings us back full circle... It's really up to the judge hearing the case...

Kevin


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## freebird1963 (Jan 21, 2007)

If its in the public domain its free game so it wouldn't matter. Not sure about the names tho. I doubt Disney gives anything away.


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## DivineBling (Sep 14, 2010)

freebird1963 said:


> If its in the public domain its free game so it wouldn't matter.


I'm confused as to what you mean by that statement. Can you please clarify for me?


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## freebird1963 (Jan 21, 2007)

DivineBling said:


> I'm confused as to what you mean by that statement. Can you please clarify for me?


Above me he said
... " Now maybe all these fonts are in the public domain but someone has to own these no?"

And I replied with what I did. 
My impression and take was that he said that tho they were public domain they were still controlled by someone and bad things could happen, I was saying if they are public domain they are fair game. As they way I have read public domain to be.


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## kimura-mma (Jul 26, 2008)

katruax said:


> That brings up a better question entirely... Can we use a font and make a rhinestone template for it and sell it on a shirt?... It's a derivitive work no? Even if we own or purchased the font can we then create a rhinestone template based on a font and sell it?... Seems like a gray area to me?


Hey Kevin,
I think there may be some misinformation here. For copyright purposes, there are differences between "fonts" and "typefaces." Fonts, which *are* protected by copyright, refers to the actual computer file. Typefaces, which *are not* protected by copyright, refers to the creative elements of the characters.

So when you download a font (whether paid or free), you are supposed to abide by the licensing agreement that comes with the font. The copyright owner can definitely protect against the unlicensed distribution and usage of the font file.

But once that font is converted to outlines in a design program and used in a creative graphic, it becomes a derivative of the typeface. Which is legal to create because the typeface (except in very specific circumstances) is not protected under copyright law.



katruax said:


> Same would be true with the Disney font... That font in particular I'm almost certain is copyrighted by the Disney corporation...


Yes, this is one of the specific circumstances where a company can claim the creative elements of a typeface as intellectual property. The outcome of an infringement case would be up to a judge, of course, but major companies like Disney, LucasFilms, Starbucks, NFL would be the types of IP owners that would take action against the use of similar typefaces.



katruax said:


> Arial is a proprietary font.http://en.wikipedia.org/wiki/Arial#cite_note-gnufreefont-why-22


You'll notice in that section of the Wiki article, they refer to it as a "computer font." This is because their copyright protection extends to the computer file, not the creative elements of the typeface. That doesn't mean they can't *try* to take legal action. But it may be difficult to win an infringement case for the use of the typeface under current copyright statutes.



katruax said:


> Now maybe all these fonts are in the public domain but someone has to own these no?


 When a copyrightable work is released to the "public domain," that means that the copyright owner has relinquished their rights to the work.

So Mark is correct... If a work is in the public domain, it is fair game.

But the actual names of the fonts are a different story. The names would be eligible for trademark, not copyright. So public domain would not apply to the names.



katruax said:


> Do we all get too worked up over copyright?... I think so. The real truth is it doesn't matter what we think. Copyright is not black and white and that's why we have lawyers and judges. It's ultimately what the judge feels on that day what matters.


Yes, we probably do get too worked up over copyright.

But it does matter what we think. Because as business owners, many of us need to make important decisions regarding intellectual property.

If a case goes to court, it will be up to the judge. But if we make smart business decisions about we design, produce and sell, hopefully we will never have to be in that position.


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