A Copyright Commentary: Breaking it down for the Crafting Community - Part 1

copyright infringement trademark law

Hey guys, Rachel here from The Smudge Factory™! I just wanted to share a little bit about copyright (CR) and trademark (TM) with you. Since starting my hand-lettering journey, I’ve been asked so many questions about CR and TM, and I feel like it’s a huge gray area that’s widely misunderstood. I’ve been gathering my thoughts for a few weeks to write this post, and I finally feel like I’m ready to share it! I’ve taken it upon myself over the last few years to educate myself as much as I possibly could. I’ve spoken with several attorneys and apply for US copyright protection on almost everything I create now, and I have a pile of copyright numbers registered in my name. There are a few misconceptions when it comes to copyright, and I see a lot of the misinformation floating around Facebook or other forums. Please remember that I’m NOT an attorney (this isn't legal advice!), so if you ARE an attorney and any of this information is wrong or invalid – PLEASE speak up! I don’t claim to know it all, but this is just what I understand based on what my personal attorney taught me and the research I've done. I’ve included a little bit about Trademark law, but there is SO much more to learn there, and even so - just my bit on copyright law is too long! I’ve divided this information into 3 parts, so when you’re done with one, hop right on over and read the next if you can! :)
A couple quick things:
First, your personal copyright exists the minute you create something in a fixed, tangible form. That’s right - as soon as you make something, it’s copyrighted…it’s your “intellectual property” (IP). Additionally, the moment you publish something online – your copyright exists. Now, this does NOT mean if you copied or infringed on someone else’s published design, that it’s now yours. That’s not how this works. ;) There’s a “30% Rule” misconception out there that says if you take any work of art (whether it be a song or piece of art, etc.) and change 30% of it, then it’s yours. This is not always true. Unfortunately if you take something and create a derivative work, no matter how much you change it – you could find yourself faced with an infringement lawsuit. It’s not up to you to decide. If the original designer feels that it is infringing, that could be enough to land you in court…and then it would be up to a judge to decide. This is all super subjective, so it’s something you have to figure out whether or not is worth the risk. As my attorney said, sometimes infringement cases all depend on how the judge is feeling that day. In my opinion, working from scratch is always best under any circumstances – especially if you don’t want the possibility of being accused of infringement.
Second thing, it’s in your best interest to form an LLC and write an operating agreement for your business (if you have one) as soon as possible. This will help to protect your personal assets should you ever be accused of infringement or get into a legal battle. I can’t stress this enough. It’s one of the first things my attorney recommended when I met with her over a case of obvious infringement.
Third, learn all about the Digital Millennium Copyright Act (DCMA), which was placed into effect in 1998. (Think back to music sharing and the big fuss that was created when people started uploading music to share with each other. Those music artists were not happy.) You can learn more about the DCMA process and filing counter-notices if you’re ever falsely reported here: https://www.copyright.gov/dmca-directory/
Fourth, if you find yourself stuck on the other end of copyright infringement, rest assured that it isn’t the end of the world. Some designers are very forgiving, even though some of them aren’t. Please realize that a lot of designers earn their living by creating designs and selling their artwork. If they don’t protect it, it could be shared thousands of times, and the amount of profits lost could really, really affect their income. In general, designers aren’t bullies…they just want to protect their property. If someone stole your car and gave it to someone else, you’d be upset, right? That’s how designers feel about their artwork. More on that later.

In my opinion, the absolute best place to learn the most accurate information about copyright law is via the copyright.gov website. And if you’re able to, hire an IP attorney. Mine is able to clarify almost everything I ask. To find an IP attorney in your area, (if you’re in the US) go to your County website (or your county’s Bar Association website), and search under Commercial/Intellectual Property law. You can also contact Joey Vitale at Indie Creative Law and join his Facebook group.
These are the most helpful links I have found:
https://www.copyright.gov/help/faq/faq-general.html#what https://www.copyright.gov/circs/circ01.pdf <--This is an amazing PDF that outlines CR very, very thoroughly. There are more parts to this document that outline things even more clearly.

In Part 2 of this post, I’ll be covering what to do to protect your work, and what NOT to do when seeking artwork to use in your business.

Owner | The Smudge Factory™

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