T-shirts are usually the first items developed in a new clothing line. They may have photographic images, unusual patterns, words or quotes printed on the front. Some t-shirt designs may be created specifically for the t-shirt and others may be existing images or quotes.
If you intend to create t-shirts with patterns on the front, you need to know your intellectual property rights and whether you need to consider another party’s intellectual property (IP) rights. This article looks at IP issues relating to t-shirts, specifically considering the copyright material used on a t-shirt or that may subsist in the t-shirt itself.
Copyright in Images
If you are printing your original images or patterns on t-shirts, copyright subsists in the images and you are the owner. However, if you are using someone else’s images or images from the internet, you will need the copyright owner’s permission.
The internet is particularly tricky as sometimes the source is difficult to identify. Do not assume that images are copyright-free just because there is no copyright notice. Also, be wary of images that have Creative Commons Licences and make sure that the licence allows you to use the image for your intended purposes. Some licences are for non-commercial purposes and if you are setting up a t-shirt business, this licence would not suffice.
Copyright in Quotes
Copyright does not always exist in quotes and short phrases. If you are printing quotes on your t-shirts, establish first whether there is copyright attached to the quote and whether you need to first approach the owner for permission. The shorter the phrase, the less likely it is that copyright subsists as it is more difficult to show that it is sufficiently original.
If you are not using the whole quote, you will only need permission if you are using a substantial proportion of the original. This is not a black and white situation – even where you are only using a small part of the quote you may still need permission if the part you are using is considered to be an essential or distinctive part.
What are the Exceptions?
The Copyright Act 1968 provides for a number of exceptions to using copyright material without consent including where the material is used for the purpose of parody or satire. The purpose of parody or satire is known as a fair dealing exception under which you may be able to use the material without paying a licence fee. The exceptions are not straightforward and so you should be careful of relying on fair dealing without being certain that they apply.
In What Does the Copyright Subsist?
Copyright subsists in original artistic work. Since most t-shirts are very similar shape, it is possible that a basic t-shirt itself may not be enough to attract copyright protection, unless it is particularly unique in design or construction.
The artistic work printed onto a t-shirt, however, is protected by copyright. Even if the t-shirt is mass-produced, the image on the t-shirt will not lose its copyright protection. The general rule is that copyright in a two-dimensional artistic work (i.e., the image) is not lost if the image is on a functional item (the t-shirt) that is mass produced.
What Does This Mean?
If someone starts selling copies of your t-shirt and you are the owner of the copyright material, you are able to enforce your copyright and take action against them.
You can also take action against copyright infringers if you are the exclusive licensee of copyright material but not the owner. If you have exclusive permission from someone to use their image on your t-shirt, other parties should not also be able to reproduce the image on their t-shirts.
Other Intellectual Property Rights
If your clothing item is not a standard t-shirt and it is unique in design or construction, it may be possible to register the design. Design registration is appropriate for unique clothes that you intend to mass produce, as long as you register the design before introducing it into the market.
Finally, you should consider a trade mark for your t-shirt label. You can register you label name or logo as a trade mark as a way for your consumers to identify your brand. A trade mark gives you exclusive right to use the name or the logo in relation to your clothes and prevents other clothing businesses from using the same or similar marks.
If you have any questions about how to protect your t-shirt designs, get in touch with our intellectual property lawyers on 1300 544 755.