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Common Copyright Guidelines. Copyrights are very important in the
world of merchandising. The laws regarding copyrights are confusing
even to experts, so it is no wonder beginners often make mistakes.
Some common misperceptions include:
- But it's public domain. Are you sure? Just because it is found
on the Net, lacks a (c) copyright marking, or was published in the
newspaper does not mean it's public domain.
- I can use it, because I got it from a graphics program I paid
for. Most graphics packages include clip art and photo collections
- but the license agreements are usually for non-commercial use
only. Even if they do grant rights for commercial use, use on
merchandise is frequently treated differently and still requires
another, explicit grant (and usually for additional fees).
- I didn't use the whole thing, so it's "fair use."
"Fair Use" is a copyright term that applies to
derivative works, usually for educational purposes. It rarely
applies to commercial products for sale, and courts usually favor
the author. "Fair use" really does not apply to products
such as those on Scarlett's Web™, unless there has been
substantial, near unrecognizable transformation.
- It's parody. Parody laws are contentious. Even if you win a
court case, it can cost a lot of money. That's why professionals
like Weird Al Yankovic get permission before they publish a song.
Like other areas of copyright law, non-profit parody is treated
very differently from for-profit parody. It also covers copyright,
but does not cover trademarks, so a "parody" of a
corporate trademark could very well wind you up in court.
- What about freedom of speech? Freedom of speech is a
constitutional protection guaranteeing that the government will
not oppress your political speech. It does not cover freedom of
merchandising, nor freedom of having your speech for sale in a
T-shirt shop.
This is complicated law, and big businesses frequently defend their
intellectual property with expensive lawsuits. If you have any doubt,
get legal advice before selling something, or think about using a
different design that does not violate someone else's copyrights. You
can learn more from Nolo
Press
Image Rights
You own all rights to your images. When you agree to set up a
store, you grant us the right to print your images on your behalf, and
to display them on the Scarlett's Web™ Web site - on your behalf.
Should you cancel your membership, our right to display and print your
images also ceases.
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Image Protection
We only display low resolution preview images of your designs on
our web site. Your original high resolution image is stored on a
separate computer that is not accessible via the web. We only use
these images to print on merchandise with your permission.
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Copyright Infringement
If you think that your copyright is being infringed by a business
that has built its Web site using Scarlett's Web™, please contact the
Scarlett's Web™ Copyright Agent at Copyrights@Scarlett's Web™. Scarlett's Web™ has retained the right to terminate any
Scarlett's Web™ customer Web site and account if we believe that it is
infringing on another party's intellectual property right.
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Parody Law
Reprinted with the permission of Bell, Boyd & Lloyd LLC.
www.bellboyd.com
CALIFORNIA RIGHT OF PUBLICITY AND LAW CONCERNING PARODIES
California's right of publicity statute provides:
Any person who knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods, or services,
without such person's prior consent . . . shall be liable for any
damages sustained by the person or persons injured . . . .
Cal. Civil Code § 3344(a) (West 1999). Under this provision, one
may not knowingly use the photograph of another for commercial use
without the permission of the subject, regardless of who owns the
photograph. The same rules apply for using the name, voice, signature
or likeness of another. The statute provides an exception for using
another's name, voice, etc. for news, public affairs, sports
broadcasts or political campaigns. See id. § 3344(d).
A party damaged by a violation of the statute may sue for
injunctive relief and recover the greater of actual damages, including
profits from the unauthorized use, or $750, plus punitive damages and
attorneys' fees and costs. California's common law also provides for a
right of publicity that is broader than the statutory right. The
elements of a common law right to publicity claim are:
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defendant's use of the plaintiff's
identity;
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appropriation of plaintiff's name or
likeness to defendant's advantage, commercial or otherwise;
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lack of consent; and
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resulting injury.
Unlike the statutory action, the common law right of publicity does
not require a knowing use of the plaintiff's identity or a direct
connection between the use and the commercial purpose.
Under California law, a party may not use the identity of another,
including photographs of another, without permission or authorization.
The law does not take into account who owns the photograph or the
physical object on which the signature, image or likeness is
contained. The common law also is clear that even non-commercial uses
of another person's identity may violate one's right of publicity.
Parody. The law regarding parodies is based upon the "fair
use" doctrine under the U.S. Copyright Act. Under this doctrine,
certain uses of copyrighted works, which would otherwise be considered
infringing, are permissible.
In 1994, the U.S. Supreme Court decided Campbell v. Acuff-Rose
Music, Inc., which involved 2 Live Crew's parody of Roy Orbison's
famous song, "Pretty Woman." In determining that the song at
issue was a parody, the Court emphasized the "transformative
nature" of the parody. The Court did not set forth a bright-line
rule for determining when a parody will be protected, but stated that
each parody must be judged on a case-by-case basis.
Courts consider four factors in determining whether a parody
constitutes fair use and thus is not an infringement:
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the purpose and character of use,
including whether such use is of commercial nature or is for
nonprofit educational purposes;
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the nature of the copyrighted work;
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the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and
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the effect of the use upon the potential
market for or value of the copyrighted work.
In addition, courts may consider any other relevant factors not
specifically enumerated under the Copyright Act. In general, the
following principles have emerged from the law on the doctrine of fair
use:
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Parodies generally enjoy a high degree of protection under the
law. Courts generally view parodies as important means of
expression that should be protected.
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Parodies for nonprofit purposes are more likely to be deemed
fair use than those for commercial purposes. This factor, however,
is not determinative.
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The more the author of the parody changes the original work in
creating the parody, the more likely the parody will be considered
fair use.
In summary, the law surrounding parodies is factually based.
Accordingly, any use of a copyrighted work claiming to be a parody
should be reviewed by legal counsel.
The information contained in this memorandum generally describes
California's law on the right of publicity and the fair use doctrine.
It is for information only and is not a substitute for legal advice or
individual analysis of a particular legal matter. Readers should not
act without seeking professional legal counsel. Transmission and
receipt of this publication does not create an attorney-client
relationship. This memorandum may not be provided to or relied upon by
any third party without the prior written permission of Bell, Boyd
& Lloyd LLC. For information call 312.372.1121.
© 2000 Bell, Boyd & Lloyd LLC
All Rights Reserved
Bell, Boyd & Lloyd refers to Bell, Boyd & Lloyd LLC and Bell,
Boyd & Lloyd PLLC. attorneys@bellboyd.com
1See Michaels v. Internet Entertainment Group, 5 F. Supp.2d 823
(C.D. Cal. 1998); Cal. Civil Code § 3344(a).
2See Michaels, 5 F. Supp.2d at 836.
3See Michaels, 5 F. Supp.2d at 837. See also Newcombe v. Adolf Coors
Co., 157 F.3d 686, 692 (9th Cir. 1998).
4See Newcombe, 157 F.3d 686, 692; Michaels, 5 F. Supp.2d at 837.
5See 510 U.S. 569 (1994).
617 U.S.C. § 107. |
