Intellectual Property Guidelines
These guidelines were compiled and developed to help you
better understand Intellectual Property laws as they relate
to your use of website content such as that of GAFY.
The information contained on this page is for informative
purposes only and should not be construed as legal advice.
For specific advice regarding your use of content through
any website including GAFY.com, please consult an attorney.
Copyright
What is a Copyright?
Copyright law protects the expression of one's ideas.
A copyright protects original work of authorship such as a
picture, drawing, graphics, software program, written work,
sculpture, song, or photograph. Copyright law prevents
you from copying another's copyrighted work for any purpose.
Making things based on the copyrighted work, distributing
copies of the copyrighted work, publicly performing the
copyrighted work, displaying the copyrighted work, and in
the case of sound recordings, transmitting the recording
over the internet or in another media, all are a violation
of Copyright law.
How long does copyright protection last?
The term of a copyright for a particular work depends on
several factors, including whether it has been published,
and, if so, the date of first publication. As a
general rule, for works created after Jan. 1, 1978,
copyright protection lasts for the life of the author plus
an additional 70 years. However, if a change has been
made to a work taken from the public domain, the new work
may be copyrightable and protected. To determine the
length of copyright protection for a particular work,
consult chapter 3 of the Copyright Act (Title 17 of the
United States Code).
Trademark
What is a Trademark?
A trademark is a word, name, symbol, or other device
that identifies the goods or services of a given person or
company and distinguishes them from the goods or services of
other persons or companies. Trademark law prevents you
from using another's trademark (such as the name of a
musical group or artist) on your merchandise, because such
use will cause consumers to believe that the trademark owner
has made, approved of, or endorsed your merchandise.
In short, a trademark is someone's name or brand. For
example, GAFY.com® is a registered trademark.
What is a
Service Mark?
Any word, name, symbol, or device (or any combination
thereof) adopted and used by a manufacturer or merchant to
identify and distinguish their services from those
manufactured or sold by others, and to indicate the source
of the services. For instance, "Duck Decency”
and "The Phone Booth to your Inner-Superhero" are
Service Marks of GAFY.com.
What can be trademarked?
Word(s), word(s) plus design, trade dress, packaging,
sound, slogans, smell, service mark, geographic marks,
collective marks, certification marks, and family marks.
What is
Trade Dress?
Trade dress can function as a trademark and is used to
identify the goods of a party in the marketplace. For
instance, trade dress can be the shape of a Coca-Cola
bottle, the yellow color of Kodak film, and the shape of a
classic Ferrari.
What are Trademark rights?
An owner of a trademark/service mark has the right to
use that trademark/service mark and to prevent others from
benefiting from the trademark/service mark's good reputation
and recognition in the marketplace.
Right of Publicity
What is Right of Publicity?
The Right of Publicity makes it unlawful to use
another's identity for commercial advantage without
permission. Someone's "identity" includes, for
example, their look, voice, name, nickname, professional
name, and other distinctive characteristics. For
example, the Right of Publicity prohibits you using the
picture of a celebrity on your merchandise without
authorization.
Right of
Privacy
What is Right of Privacy?
Generally, the Right of Privacy protects the intrusion
into one's private affairs, disclosure of one's embarrassing
private facts, and publicly placing one in a false light in
the public eye.
Examples of
Prohibited Content
In accordance with intellectual property laws, GAFY.com has certain rules regarding the types of merchandise that it can sell and you will be able to create when we enable custom merchandise ordering.
For example:
NO unauthorized use of names, logos, pictures, or other intellectual property of musical groups or musical artists. For example, you cannot make Brittney Spears merchandise simply because you run a fan-based Brittney Spears website or because you downloaded her image from an internet website. You also cannot modify the name or other intellectual property of a musical group and avoid infringement, (i.e., using Deaf Leopold instead of Def Leopard).
NO unauthorized use of names, logos, pictures, or other intellectual property of sports teams, colleges or universities, clubs, or organizations such as MADD, The Ohio State University, or The Log Cabin Republicans. Again, modifications may not avoid infringement.
NO unauthorized photos, logos, caricatures, or other artwork depicting celebrities, such as Brad Pitt or Diego Maradona, or other third parties. Just because you take a photograph of a celebrity does not give you the right to use that photograph on merchandise, even if you digitally manipulate the photograph.
NO unauthorized use of trademarks, names, or logos of companies. For example, you cannot use the name of a company such as Adidas, a company logo such as the Nike "swoosh" trademark, brand name such as Coca-Cola, or a modified version of a trademark, (i.e., "Just Doing It").
NO unauthorized photographs of products (such as toys, appliances, etc.). Even if you own a product, trademark laws may still prohibit you from selling merchandise that features pictures of it. For example, you cannot take a picture of your Tickle-Me-Elmo and sell merchandise with that picture.
Frequently Asked Questions
If it does not have a copyright notice, it is ok to use?
USUALLY NOT.
Almost all works are protected by copyright, even if they do
not have a copyright notice. Therefore, you should assume
that you need to obtain permission to use any material that
you did not create.
If I do not mark up the selling price of my products,
will it be an infringement?
MAYBE.
If a product is not marked up from its base price, that sale
can still be considered an infringement, even if you are
buying the product yourself. Even if you post an image in
your store and make no sales or earn no profits, you can
still be held liable for the use of the image.
It's on the internet. Is it ok to use it?
NO. Simply because an image is found on the internet does not mean that it is in the public domain. Unless the author of the work has explicitly stated that his work is "public domain" or that the copyright has expired because the work is very old, then you must assume it is not. Further, a person who posts an image on the internet and claims that you are free to use it may not have had the right to post the image in the first place. Thus, your use of the image may violate the rights of the actual copyright owner.
Is it fair use?
USUALLY NOT.
Fair use of a work for the purposes of merchandise sale is
treated very differently than for informative purposes or
for commentary. In general, a claim of fair use of a work
when it is used on merchandise may not hold up in court,
especially if the merchandise is sold for profit.
I took the photo. Can I use it however I want?
NO.
Simply taking a photo of a person, company, brand, logo, or
the like does not afford you the right to sell merchandise
featuring that photograph.
There are two distinct intellectual property rights in a photograph:
1) The rights in the photograph itself.
2) The rights in the subject of the picture, such as the product or person shown in it.
For example, if you take a photo of a celebrity, you only own the rights to the photo, but not the right to use the photo for merchandise sale. In order to sell merchandise with the image, you will need to obtain explicit permission from the celebrity.
I based my artwork on the artwork of a third party.
Is that ok?
NO.
Works that are derived from a previous work of another
violate the rights of the owner of the previous work. Therefore, if you are creating an image that is based on the
work of someone else, you need to obtain permission from the
original creator prior to your use of your work. For
example, Weird Al Yankovic obtains permission from Michael
Jackson prior to recording a song based on one of Michael
Jackson's songs.
It is a parody. Is it ok.?
MAYBE.
Parody is one form of Fair Use (see above). Parody may qualify as
Fair Use only if it draws upon
the original composition to make humorous or ironic
commentary about that same composition. Whether something
falls within the Fair Use Parody Exception depends on
whether the parody reasonably could be perceived as
commenting on the original or criticizing it to some
degree. Generally parody, like Fair Use, is a
difficult and murky concept, even for experts, and you
should consult with an attorney before using copyrighted or
trademark material in connection with GAFY.com's custom
product services.
I am using Clip Art. Is it ok?
USUALLY NOT.
Most clip art, photo collections, or graphic programs
contain a license agreement. The license agreement sets
forth the specific uses for the clip art. In most instances,
the license does not grant you the right to use the clip art
for the sale of merchandise. You should consult the license
agreement and your attorney to determine whether you can use
the clip art images with GAFY.com's custom product services.
The First Amendment protects my freedom of speech.
Can use whatever images I want?
NO.
Freedom of speech is a constitutional protection that
guarantees that the government will not oppress your right
to self-expression. It does not give you the right to use
the intellectual property of another to sell or distribute
merchandise.
Can I use images of a celebrity since you allow images of
famous political figures?
NO.
There is an exception to the Right of Publicity for
political figures, which does not extend to celebrities.
Sources for Additional Information
For additional information on Copyrights and Trademarks, please visit http://www.copyright.gov and http://www.uspto.gov.
You can find the federal laws regarding Copyright (U.S.C. Title 17) and Trademark (U.S.C. Title 15) at http://www.access.gpo.gov/uscode/uscmain.html.
For general questions about Intellectual Property Rights, please visit the Nolo Law Center at http://www.nolo.com.