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.
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).
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.
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
You can find the federal laws regarding Copyright (U.S.C. Title 17) and Trademark (U.S.C. Title 15) at http://www.copyright.gov/title17/.
For general questions about Intellectual Property Rights, please visit the Nolo Law Center at http://www.nolo.com.