Intellectual Property: What is it and Can I Use it in my Art?

Can I use a sports or company logo/graphic on my acrylic tumblers or to embellish a painting? In short, the answer is “no.”

I absolutely love looking at how creative artists can be, but honestly, every time I see someone use a logo or any other graphic as an embellishment, I can’t help wonder if they are aware of the intellectual property laws.

Let me preface this by stating that I am not a lawyer and this is not legal advice. However, I have a lot of personal experience with this topic, have done years of research, and consulted with many attorneys over the years. I thought I’d share what I’ve learned. In short, here are a few basics:

Trademarks are words, phrases, symbols, and/or designs that identify a product so that the public knows the source or who owns it. Service marks are similar except that they are for services rather than for products.

Copyrights protect original works which include—but is not limited to—books, articles, poetry, plays, movies, videos, art, music, computer software, architecture, etc. As soon as the original work is in tangible form, it has an automatic copyright protection. One thing to note is that there is no such thing as a “poor man’s copyright.” It was often said, and I still hear people say it today, that if you make a copy of your work, put it in a sealed envelope, mail it to yourself, and do not open it unless someone infringes on your copyright, that this method is legally enforceable. It is not. 

While you do have an automatic copyright as soon as you create the story, song, movie, or your art in tangible form, you cannot take someone to court unless you hold a registered copyright from the U.S. Government. But the details and requirements for that is a whole other topic. Patents relate to inventions, discoveries or useful improvements and are issued by the U.S. Patent and Trademark Office. There is obviously much more information for each of these but for the purposes of this article, we’ll focus on the first two as they relate more to artists and crafters. It’s easier to explain things with examples so let’s look at a few scenarios where infringement occurs.

Trademark Infringement

Artist A makes custom tumblers and knows that if they make some with team logos that those will appeal to a lot of people. Sports fans can be super loyal and often will buy any product with their favorite team’s logo. So why shouldn’t Artist A Google the team logo, download it, print it out, make a stencil from it, or however they need to reproduce it in order to apply it to their tumblers? The answer is because unless they have received a license agreement from the league or team, they aren’t legally allowed to use it.

Artist B says, “I’m not selling them. I’m only giving them to friends and family.” Monetary compensation is irrelevant. If they didn’t get a license agreement, they are still not allowed to use the logo.

Artist C says, “I’m such a small seller online, Team X isn’t going to care if I’m selling products with their logo. It’s not like they’ll find me online or anything when there are so many people doing the same thing. And if they happened to run across any of my products, they only go after the big sellers.” While this may be true in some cases, why take the chance? Some sports leagues and big companies have teams of people whose job it is to scour the Internet specifically looking for trademark infringements. Whether someone is selling on Etsy or similar sites or is just posting on Instagram or Facebook, the products are out there and could be discovered.

Copyright Infringement

Sports teams’ logos aren’t the only images that are protected by a trademark and/or copyright. For example, if you’re tempted to use a cute Disney character as an embellishment on a pour, tumbler, or any other product…don’t. Disney has a reputation for being one of the most aggressive trademark/copyright owners. This means that if they find you, whether you’re making art or products as a hobby, giving them away, or are doing it as a business, you could be facing legal action. If you’re selling on Etsy, all a copyright or trademark owner has to do is report your

products for infringement and Etsy removes your listing. Too many violations and they could delete your account. Is it worth it? 

Note: I used Disney as an example but this applies to any licensed character or image owned by a company.

Let’s look at Artist A again. “What if I’m hand painting a character on a pour? I didn’t copy it exactly or trace it or use a printed stencil. That should be okay, right?” Creating “inspired by” images can still be a slippery slope, especially if it looks like or could be perceived as the original character. This situation is best answered by an attorney.

Artist B thinks they’re in the clear because all they’ve done is use words and/or phrases on their pours or products. As silly as it may seem, there are a lot of phrases and even just single words that have received registered trademarks which means you’re legally not allowed to use them, regardless if you’re selling products or giving them away.

If you’re asking, now what? Here are some options:

1. Stop creating products using intellectual property that belongs to someone else. Whether it’s from a big company or even just a “free” image you found online, it’s always safer to create original content.
2. For trademarks, search the Trademark database to see if the words or phrases have been trademarked already before you decide to embellish your pour with them or use them on other products. Don’t assume that just because it’s a common word or phrase that it’s okay to use.
3. For copyrights, remember that as soon as someone creates a drawing, writes a story, composes a song, etc. and it’s in a tangible form, it is copyrighted.
4. If you find a graphic online, make sure you look at the license restrictions. Many sites will say the images are free to use but that’s not always accurate, especially when it only takes a second for someone to snag a licensed image from one site and then upload it to what looks like a free site. 

Everything up to this point has been from the infringement side. But what about protecting your works? I’ve seen a lot of posts asking if it’s safe to share pictures of your art online. Some people put a watermark on their pictures while others think it’s not necessary. A watermark may be somewhat of a deterrent but if someone really wanted to snag a copy of your picture, with a little Photoshop work, your watermark could probably be removed. 

Regardless of how much you decide to protect your art before you share it online, if you discovered that someone was using a photo of your painting without your permission, the best thing to do would be to consult with an attorney. If you Google intellectual property attorneys, many will give you a free 30-minute phone consultation. They’ll usually tell you the basics and what you can and cannot do legally for your situation. I would always talk with at least three to get a consensus.

There is so much more information relating to intellectual property that I didn’t cover but hopefully this gives you a starting point to research more yourself or seek legal advice, if necessary. If you’re using someone else’s logo, graphics, images, words, phrases, etc. and the property owner takes action against you, it can disrupt your world pretty fast. On the other hand, if someone infringes against your property, it still can be stressful having to decide what to do. Plus, both sides of this issue can get very costly.

Is there one definitive answer? Unfortunately, no, which is why it’s important to talk with an attorney before something happens. It doesn’t hurt to make a phone call or two to ask questions. Wouldn’t you rather be informed ahead of time than be blindsided after a situation arises?