Home » Art & Business » Intellectual Property: What is it and Can I Use it in my Art?

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?

Get to know more about intellectual property laws to make things legal in terms of the usage of your acrylic pouring designs. #acrylicpouring #acrylicblog #acrylicpaint #art #artwork #legal #intellectualproperty #laws #copyright

23 thoughts on “Intellectual Property: What is it and Can I Use it in my Art?”

  1. Hi Nancy… thanks for a great article. One of the most clear and understandable articles I’ve read on the subject. Just a point about licensing. My husband and I used to do many art/craft shows and see alot of infringement. I asked one vendor with Mickey Mouse stained glass boxes about licensinng. He said he called Disney, sent them a picture and they OKed his use of the image in return for three boxes. This was quite a while ago and things may have changed. But it never hurts to ask. Thanks again for a great article.

    1. Sherry, thanks for your comments. It’s hard to say why companies will make acceptions to their normal guidelines but you’re right, things may have changed. 🙂

  2. What about more “non-intellectual” products? I like to cast Resin into cabachons that can be placed aboard a lit-from-below” display light. I order them on Amazon, they’re battery operated, and you place a vase or other transparent item on top so that the light shines upwards. I will then glue the cabachon to the top of the lit disk or square and make a nightlight. If I only charge what I paid for, and come up with my own price for the Resin cabachon, add the two together, am I in the clear as far as using the base that I purchased? The same goes for the “clock kits”, unfinished wood face ready for painting, with all of the works taped to the back of the clock until you’re ready to assemble. I buy THOSE kits at Target.

    1. You’re allowed to resell any tangible thing you purchase UNLESS a condition of your purchasing the item was that you not resell it. I could I see the resale of something being an issue if your sale of said item infringed upon copyright laws. You can’t buy a physical item and sell copies of said items (you can’t buy a statue, cast a mould, and sell duplicates), but you can resell the original statue. So your reselling of assembled and painted clocks is legal

  3. Am I infringing on someones copyright if I title my painting a well-known phrase\lyric such as “Blowin’ in the Wind”? If so, how about a slight variation such as “Blowing in the Wind”?

    1. You’d likely only run into an issue if your product could be mistaken for the other product of the same name. It’s unlikely that a painting could be mistaken for a song. Also, you’re probably fine if the words you’re using are part of the common vocabulary and used for many things. That being said, Guns and Roses recently went after a small vintner that named one of their wines Guns and Rosé.

    2. Karen, phrases, lyrics, and titles are not copyrighted. They fall under the trademark laws. So it’s easy to go to the Trademark Search database and check words or marks.

      Under trademark laws, someone can trademark a word or phrase but they have to declare what category they’re using it in. So for example, if someone trademarked Fat Cat to use as a slogan, title, company name, etc. specifically for a cat food company and related products, there generally wouldn’t be any confusion if you used that same phrase to embellish on a painting or cup or used it on a journal cover. However, IF the trademark also had a specific font used and you used the same one or something so similar that the public “thought” your product was made by the Fat Cat company, then they could get an attorney who decided that it led to consumer confusion and you could be contacted.

      In the past couple of years, since print-on-demand has become so much more popular on Amazon with books, t-shirts, etc., there have been more and more common words and phrases being granted a trademark. It has kind of gotten out of hand and there are specific FB groups who are trademark watchdogs to try and stop this from happening. By the government granting trademarks to very common words and phrases, it limits too much for the rest of free enterprise.

      As far as making slight variations to words or phrases, it comes down to how the general public would perceive it. If it’s clear you’re not trying to take advantage of someone’s trademark, you’re “probably” okay. However, I always recommend people doing their own research to see. That could be searching the database or contacting an IP attorney just to ask.

  4. Here’s a question and this is a great article by the way and ridiculously timely for me as I was planning on painting something as a Christmas gift. I assume this applies to product logos such a Pepsi, etc? I have a running joke with a friend who couldn’t get her door unlocked about WD-40 and was planning to paint a can of it as a comical Christmas gift. Now I’m thinking that’s probably not a great idea – well the idea is great, just not the problems attached to it? lol Thanks.

    1. Andy Warhol did create images of brand products, so maybe that usage is okay?

  5. Linda, technically, no one is allowed to use a trademarked logo whether it’s for a gift or for sale. But a lot of attorneys would probably tell you (and remember, I am not a lawyer), that it’s highly unlikely that the company would even know about your gift. An attorney would quote the laws, give you his/her opinion, but they always seem to leave the final decision up to you.

  6. What if I used some original funny phrases on t-shirts to sell. Would I have to trade- mark those phrases to keep other people from using them.

    1. Walter, first, check the phrases on the Trademark database you want to use. You might be surprised. Some could already be trademarked.

      But if you come up with 100% original phrases and didn’t want anyone else to use them, then yes, you’d have to trademark them. However, each trademark application isn’t cheap. If you do it yourself, it ranges from $225-$400 and that’s if you don’t make any mistakes because they charge you for corrected filings. Plus, you pay that fee for each class of goods. So if you want to put that phrase on shirts, it’d be one class. For paper products, another class, etc. Also, a trademark doesn’t last forever. You have to renew at certain year intervals and there are fees for that also.

      The fees are only the first expense. The real cost comes if someone infringes on your trademarks. At that point, you’d have to decide if you want to spend the time and money to fight them in court or at least pay a lawyer to send a Cease and Desist letter for you and hopefully they’d stop at that point. Even successful entrepreneurs have reported that they chose to not pursue legal action because the only ones who win are the attorneys. Some say it’s more important to be first to market than waste all your money fighting.

      Think about this aspect too. Once you hold a trademark or even a copyright, will you always be wondering who has infringed, have you missed anyone else, who do you go after, etc. etc.?

  7. Back in the early 90’s, I it was popular to cut pictures from fabric, use Wonder Under to iron them to shirts and then embellish with puff paint. Used to sell them in craft fairs, but it was made very clear to me by the fair officials that I could not sell anything with Disney or other licenced character fabric as that was a violation of copyright laws. I didn’t have any in my booth, but others did and were asked to leave and not allowed to come back.

  8. If I bought a sticker and put it on a tumbler and gave it to a friend, am I going to get in trouble?

  9. how about purchasing SVG files on etsy? If I purchased and made a tumbler who would be in trouble? The seller on etsy or me or both?

    1. It depends on where the person got their SVG files. Did they create them? Are they originals? Did they say they’re for commercial use? There are some designers who sell their graphics or even fonts that come with a license to use but only for personal purposes. So you have to check each case individually.

  10. Excellent article. My sister was making an item and selling to friends – maybe 15 pieces total that included a team logo. No online store or advertising; just a word of mouth, “Where did you get that?” thing. She was quite surprised to receive a cease and desist letter from the team’s legal folks!
    This article touches on the important copyright information I had recently gleaned after someone asked if they could copy something I had written – for their writing.
    Copy? Well no, I think not, but thanks so much for asking.

    1. Everett,
      Thanks for sharing your experience and your sister’s. People just never know when their products will be discovered by some company. Even a Cease and Desist letter can be stressful. There’s no sense taking chances.

  11. What if I use lyrics or quotes, but include the source of the material? For example “How many roads must a man walk down…” -Bob Dillan

    1. Jan,
      Here’s an article pertaining to your question. Giving credit or including the source doesn’t make it legal to use without permission but this article explains this specific situation in more detail.

      If you’re still in doubt, I’d call a couple of IP attorneys. It’s pretty easy to Google to find those that offer a free 30-minute phone consultation. Good luck.

Leave a Comment

Your email address will not be published. Required fields are marked *

>
Pin
Share