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T-Shirt Design Copyright Basics: 3 Facts Every Graphic Designer Should Know About T-Shirt Design

Photo Credit: 12a by Mico Samardzija used under CC BY-NC 2.0

Photo Credit: 12a by Mico Samardzija used under CC BY-NC 2.0

With the increased ability to share creative ideas and art, graphic designers everywhere are finding more lucrative opportunities to profit from their work.

T-shirt designing is a fashionable possibility but very little has been published to give guidance to the budding artists who are providing the designs that make today’s t-shirts so popular.

As the industry flourishes, copyright challenges and questions seem to grow almost as quickly.

Copyright ownership lines are often blurred and it’s a challenge to keep up with the laws and understand who owns what and who can do what to whom!  The maze of legal issues can be overwhelming and distract you from what’s really important – selling your work for profit.

Therefore, if you really want to monetize your graphic design work in the t-shirt world, you’ve got to know your legal rights and understand the copyright laws surrounding this industry. That way you can move forward knowing that your work is being distributed in a way that you’re comfortable with, without the stress of wondering if you’re losing money or control over your designs.

What is Copyright?

Before I go any further, let’s start with a basic definition of ‘copyright’ and what it means to t-shirt designers.

Copyright is the ownership over a piece of work or art and the exclusive right to reproduce, distribute, commercially exploit, and otherwise profit from it.

So, for those of you designing art for t-shirts and other products, copyright generally refers to ownership and control over the art and designs you’re creating for third parties and their products.

The #1 Question T-Shirt Designers Ask Is . . . 

Over and over we hear, ‘When my work is printed on a t-shirt, who owns the copyrights?’

That’s the golden question.

Let’s review the three most basic facts every graphic designer should know about t-shirt design and see if we can get to that bottom of that question, once and for all.

COPYRIGHT FACT #1 – Copyright exists the moment the art is in ‘fixed’ form.

A common misunderstanding is that you have to register something in order for it to be legally copyrighted. The truth is that as soon as a piece of art or other work is in ‘fixed’ form – meaning published on a tangible platform that is viewable by humans – then it’s copyright protected.

This means that the moment you draw a new character in your drawing pad, or save your next logo in Adobe Creative Suit, you officially own the work – copyrights and all. It’s what you do with it now – and how you distribute it after the fact – that must be handled with care. There are several options for selling and distributing your work, which we’ll cover in just a bit.

COPYRIGHT FACT #2 – Works ‘for Hire’ must be specified in writing.

Just because somebody hired you to design a specific piece doesn’t necessarily mean that they automatically own the finished product when it’s done. In order to properly transfer ownership of a copyrighted work, you must specify in writing that you are creating a ‘work for hire.’

Let’s say that you are hired to create a logo and t-shirt design for a local 5k challenge celebrating its 5th anniversary. The company hosting the run hires you to create the t-shirt, giving very specific instructions and guidelines and how the t-shirt should look and what they are expecting.

Because some of the creativity is out of your hands – and because the work order is so specific – the work should likely be done as a work for hire. If stated in a properly written work agreement, this would mean that you would wave all ownership rights to the work and ownership would automatically transfer to the company upon submission of the final product.

Remember, though, that nothing is a ‘work for hire’ unless plainly stated in writing so take care to have the proper agreements in place BEFORE starting any work.

COPYRIGHT FACT #3 – ‘Fair Use’ will only take you so far.

Abused and mistreated, the concept of ‘fair use’ is often used as a poor excuse to ‘borrow’ artwork and designs without giving proper credit and payment to the owner. So, if your company makes t-shirts, you must be watchful of where you get your designs and for what purpose you are printing them on your shirts.

In general, ‘fair use’ covers cases in which an educational or non-profit institution briefly uses your related work in order to instruct, teach or otherwise endorse their nonprofitmaking message. Other fair uses include parodies or transformed work. We won’t go into these details, but understand that the boundaries are tight and courts will weigh several factors before determining that something is ‘fair use.’

The point is that ‘fair use’ is not an easy test to pass. Chances are, if you’re selling a t-shirt for profit, then the design that you ‘borrowed’ is not fair use – it’s copyright infringement – and you owe the true copyright owner an explanation and potentially profits from the unauthorized sale of their work.

Responsible Copyright Ownership

Thankfully, there are a number of viable options for sharing and profiting from your artwork and designs and they don’t involve you losing control over your work!

First things first, though; before you move forward with any working project, know if you’re a Work for Hire or an Independent Contractor. If you want to maintain ownership of your work, insist on an Independent Contractor relationship.

Once you understand your working title, it’s time to decide how you’re going to distribute your work and in what capacity it may be used.

Here are a few of the most reliable options for sharing your work:

  • Creative Commons licenses allow you to grant permission to use your work, automatically and systematically – making it easy for you share your work in a controlled and profitable environment.
  • Register your artwork or design and offer royalty free sales which would allow a buyer to pay a flat-fee for unlimited use of your work without royalty payments.

Kunvay helps graphic designers and buyers of t-shirt design artwork to transfer copyright ownership online easily in 3 simple steps.

Because you want to navigate copyright smartly follow us on Twitter.

About the Author: Erica Gardner holds a graduate degree in Legal Studies from Kaplan University and served in the Army with the Military Police. She now has a passion for writing well-researched and informative copy for attorneys, criminal justice professionals and entrepreneurs everywhere, under her business name, Mission: Marketing.

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  • TheInternetGuy

    Sir, you were not ‘forgotten’ out of $1,000, they never intended to pay you in the first place. Think about it, you never knew who the winner was (or if there was one) but you were offered a measly $1,000 on a take-it-or-leave-it basis (who does that?), giving you no further options. That’s incredibly unusual, especially given a 72-hour period to decide?

    When you decided to hand over the IP they probably collected the large sum from whatever company launched the challenge and their job was finished, leaving no reason to actually pay out the fees since you had signed a contract transferring the IP. The hiring company probably has no clue of what happened and this should not reflect negatively on them.

    Sadly, that’s how some businesses are run.

    • Reggie Solomon

      It’s true. I never did find out who the actual grand prize winner was; I wish there had been more transparency around that. It would definitely have improved my confidence in the process.

      The actual IP however was never formally transferred to them because they never followed through with the actual prize award rendering the transfer incomplete. That’s actually, one of the saving graces of the whole experience reflected in point #2 of lessons learned.

      Thanks for chiming in and sharing your thoughts. Much appreciated.

  • Juan Mario Inca

    Really interesting Kunvay, thanks ​!

    Given your interest, I think you’ll be very much interested in this list of emerging Open Innovation research: http://www.openinnovation.eu/07-05-2013/768/

    And in this new research too:

    - The Contours of Crowd Capability
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324637

    Powerful stuff!

  • Will Tennant

    Registering the copyright is required prior to bringing an infringement lawsuit.

    • airtonix

      um no?

      Perhaps you are thinking of trademark or patent.

      Copyright is given the instant you create the work.

      • Will Tennant

        True, But See Copyright Statute Title 17 Section 411 requiring registration prior to bringing lawsuit.

        • John Feminella

          If you’re the author, you don’t need to register beforehand. Otherwise, registration is required. The law is very clear on this — it’s the very first part of the relevant section. See §411:

          **Except for an action brought for a violation of the rights of the author under section 106A (a)** [...] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

          Then §106A says:

          the author of a work of visual art [...] (1) shall have the right [...] (A) to claim authorship of that work, and [...] (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

          So, in this case, since Mark’s client is ripping off the work and presenting it as his own, registration would not be required since the original author is bringing the suit.

          However, even if you don’t need to register, you may want to do so anyway. That’s because the law requires courts to presume that a plaintiff who has a registered copyright is the holder of that copyright. So a defendant would have to prove that the registration certificate is in error, fraudulent, or otherwise not accurate.

          • Will Tennant

            This is true if you’re claiming a 106A right of attribution or integrity. The famous artist Anish Kapoor, for example, would not appreciate someone taking credit for his work, or suggesting he authored the work of another. However, my comment was with respect to copyright infringement. If Mark’s client is ripping him off by copying or reproducing the work, which is Mark’s exclusive right, then 106 applies. Most of my clients are in the former category and whether it’s a picture or web-design, etc., they’re just looking to get paid for the work they do.

          • Richard_M

            Registration within 90 days of first publication grants the copyright holder the right to recover attorney and court costs. This is what puts teeth into copyright laws. It is true that copyright is given the moment a writer expresses their work. It is also true that not registering within 90 of first publication is not a good business practice.

  • Heather Cuthill

    This is a classic example of why artists should always insist upon a written contract from every client: you’ll get paid, you’ll protect your rights in your own work, and you’ll save yourself the hassle and the costs of trying to get paid through the courts – which may end up losing you money even if you’re successful. Here’s a contract template that is comprehensive and easy to customize for each of your graphic design projects: http://www.megadox.com/d/22.

    • Mo Kane

      Having a written contract is meaningless. Have you heard of breach of contract? If the client is not going to pay because they never intended to, having a piece of paper will not obligate them to do so. If the design work was done for a pitch and the client didn’t get the project, the client may not have the money to pay subcontractors like the designer. Not his fault. See my other post as to what to do next (TL:DR:Nothing).

      • Heather Cuthill

        You can always ask for money up front – either a deposit of 50% of the contract price payable at the time the contract is signed, or the full contract price to be placed in escrow or trust until completion. Clients who intend to honor the contract should not have a problem with that.

        • Mo Kane

          A 50% deposit is an excellent idea. But if the client is going to rip you off, all you are going to get is the 50%. Placing the money in trust requires a cooperating attorney that both sides agree upon and adds cost. The trust department of a bank won’t do this; they would need a trust instrument, etc. I am unaware of any commercial escrow services though this is a good idea as well, can you suggest any?

          • Heather Cuthill

            There are a number of online escrow services, such as Escrow.com. Their fees are typically based on the dollar value of the transaction. It’s the most cost-effective way I know of – a lot cheaper than a lawyer.

  • I’ve been a prayin.

    Why on earth would you do $1000 worth of work without a contract? Of course it’s heinous on the part of the contractee to not pay, but you should do what you can to prevent being taken for a ride.

  • Will Tennant

    (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

  • Mo Kane

    So much for the law, what about the reality of the situation? What happens, say, if there was a contract and the client simply refused to pay? What should the artist/designer do? Assume further that the contract was for $1000. You will not get an attorney to represent you in small claims court for less than $250. And that doesn’t include filing fees and subpoena fees. Figure on at least one continuance. And then your attorney will ask for more money for the second hearing. Assume you win. Now you have a judgment. Do you know where the client’s bank account is? Do you have the client’s bank account number? No? Then you have to pay someone to find it. That is not necessarily cheap, either. Can you garnish your client’s bank account? Sure, if you know where it is. But you have to file a separate proceeding. Your attorney will charge extra for that. At an absolute minimum, you’re at $750 in attorneys fees, not including the costs of filing the new case, the costs of service on the bank, etc. And don’t think that even if you get all the numbers right that the bank is going to simply mail you a check. No, they may very well answer and wait for yet another court hearing. Or your client, who may well be a small business like you are, simply lives paycheck to paycheck and there’s not much money in the bank either. Now what? Seize the client’s car? It’s probably a lease. You mean you didn’t get a full financial statement from the client when you started working on the new project? How much time have you spent on this collection effort? And in the meantime, you have opportunity costs because time spent on the lawsuit(s), just like time spent on the original project, is unrecoverable. You could be working on something else. My advice: if the amount of your bill is less than $5000, chalk it up to experience. In the future, insist on a down payment. That’s one way to cover your loss. Tell the client that you will not hesitate to truthfully inform anyone who asks that he has not paid you. This is a somewhat obscure reference, but when relatively small amounts of money are involved, trying to collect on a debt in the United States is like Captain Kirk’s comment on the Kobayashi Maru: the only way you can win is not to play the game.

  • Mo Kane

    For some reasons everyone’s comments seem to be repeated under separate posts. My comments about whether the law protects those who have been swindled for small amounts obviously does not apply to situations such as Winklevoss v. Zukerberg.

    • http://www.kunvay.com/ Kunvay

      Sorry about that Mo. There seems to be a Disqus bug. We’ll get fixed this week. Thanks for the note.

  • mr.t

    What if you worked for a large company as an artist and began working with one of there biggest clients producing original artwork for them wich was being printed on tshirts. Wich was and still is being produced and making lots of profit. You only worked on the clock hourly and left the company after some time. You never signed anything at all stating anything about royalties or copywrites. You have the proof that these are your works. Are you entitled to any royalties or rights about these works of art in the fact these have generated thousands of dollars and you are left pennyless and kicked to the curb?

  • Oliver Gerasimov

    I think that’s the most freelancer risk because most of them worked in a client without written contract. But thanks for sharing this post at least they will know that they have the right to claim their work.

  • Paul Thomas

    As a photographer, I needed exclusive ownership of my work. After some extensive research I found out about this firm called Levy, Levy & Sosa in Miami. I decided to set up a consultation to meet with their attorney and I’m sure glad I did. They assisted me with applying for copyright registration, the process was so simple and they guided me along the way, explaining in ways that were easy to understand. I encourage you to contact them on 1-800-464-5554 or visit their website http://www.trademarklaw101.com/practice-areas/copyright/ to secure your work!

  • Tony

    Can someone tell me the legality of creating a shirt (not for resale) that says something like “Pepsi is Shit”. Would that be illegal if I am not selling it? Thanks in advance.

    • http://www.kunvay.com/ Kunvay

      Hi Tony – Good question. If you created a t-shirt that said “Pepsi is Shit” that would constitute an expression of opinion and would be protected speech. Pepsi wouldn’t like it, but you could sell a shirt with that message. Just be sure not to use the Pepsi logo; that’s where you could get into murky waters.

  • Gerrie7407

    If I decide to print 20 t-shirts for a concert, am I allowed to print the artist logo on it ?
    Example a Justin Bieber logo with a face ? what the legal implications

    • http://www.kunvay.com/ Kunvay

      Gerrie7407 – If you print someone else’s logo on a t-shirt for sale, you would unfortunately be violating the logo owner’s copyright. The legal implications are if the logo owner saw the shirt and was able to trace it back to you or your company, you could be liable for damages. You could take the risk that the logo owner wouldn’t find out given how large the Bieber brand is and the unlikelihood that they’d find you, but you’d be taking a risk.

      Below is an article with a 4-part test to determine “fair use” vs. “copyright theft. http://blog.kunvay.com/copyright-theft-vs-fair-use-how-to-determine-if-your-work-has-been-stolen-or-adopted-for-fair-use-with-a-4-factor-test/