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Is it illegal to copy the designs used on's items?

Philipsburg, PA |

How works is: you pick a design of a card, invitation, postcard, etc. that you like. You submit your own photos to the site that you want to replace the existing photos shown as examples on the item you have selected. There are no copyright or trademark symbols on any of the items they are selling. (I don't need advice on whether or not the photo used is legal considering the photos will be submitted from a potential customer). I need to know if copying only those designs, (not the photos), and then selling the item would be illegal. For example: Would it be illegal to copying a design from one of's Baby Invitation cards, (changing only the photo), then selling it?

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Attorney answers 4


2 misconceptions:

1. Neither a copyrighted design or a trademark needs any symbol to be protected and protectible. This Shutterfly app could be like others such as Pinterest that are allowing their users to violate copyrights that belong to others, and may not have the protection of the DMCA.

2. Just because a customer submits a photo doesn't mean they own the rigts to it, and everyone in the chain of commerce can be liable for copyreight infringement. There are tons of people on the internet who mistakenly think that becauses something's online, and/or because "ewverybody's doing it," it must be "public domian" ---not true, most things on the internet are owned by someone and are protected, whether or not they ahve a copyright notice or a TM or R symbol.

If you work for customers and they contractually agree to indemnify you for any infringements involved in work for them, and they can't actually afford to indemnify you, then that indemnification is meaningless, so you do need to care about whether they're actually the owner of the IP they say they own.

Read the terms of use of Shutterfly. Then consult your own copyright lawyer.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

Bruce E. Burdick

Bruce E. Burdick


Moreover, you would be directly taking from Shutterfly and that affects their bottom line and makes it worth their while to stop you. This is a very risky business model you propose. You need to work closely with IP counsel if you are going to compete with someone like Shutterfly that likely has the resources to bury you, and copying their designs will put you squarely in their cross-hairs with likely dire consequences for you.


In addition to the response of Ms. Koslyn, copying may constitute unfair competition under the state laws of many states. As a general guidance, "copying" means you are risking infringement. Use your creativity: it's better for business and less risky in law. In fact, the reason you posted on Avvo is that you sense that "copying "is risky business.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

Bruce E. Burdick

Bruce E. Burdick


I agree. You also need to have your proposed copying scheme reviewed for possible Federal unfair competition under 15 USC 1125 and when you start copying you have to be very careful not to engage in false descriptions or false designations of origin..


As attorney Koslyn recommended, read carefully the Shutterfly terms of service, and if you propose to do real business, confidentially consult an attorney experienced in copyright and the law of unfair competition.

Beware that the rules of copyright are counterintuitive. Before 1989, if a work didn't include a copyright notice, then it prpbably wasn't protected by copyright. But then the U.S. harmonized its law with the rest of the world, and so any works of authorship created since then automatically are copyrighted, even if there isn't an accompanying (c) notice.

This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance.


That is not necessarily the right question to ask. The question may be "What will Shutterfly do?"

If they register their designs (or already done so) they have the option of suing you for copyright infringement and foregoing statutory damages. Can you afford to take on Shutterfly in a copyright suit that might cost $50,000 -$500,000. Didn't think so. That's why it is better to be original and not take this sort of shortcut.

You need to see an IP lawyer, and if you have not done so yet, also a business lawyer as it appears you need both practical and legal business advice before you get in over your head.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

Bruce E. Burdick

Bruce E. Burdick


Read Term 2 of their TOS: "Your Use of the Service Subject to and conditioned upon your compliance with these Terms, and solely for so long as you are permitted by Shutterfly to access to Service, we grant to you a non-exclusive, non-transferable, nonsublicensable, limited right and license to access the Service, including any images, text, graphics, videos, visuals, sounds, data, files, links and other materials incorporated into the Service (other than your Submissions), solely as made available by us, solely as necessary to access the Service and solely for your own personal, non-commercial, home purposes, provided that you keep intact all copyright and other proprietary notices. You acknowledge and agree that certain features of the Service may include advertisements and that such advertisements are a necessary part of the Service. The Service, including all such materials and all intellectual property rights therein, remain the property of Shutterfly or its licensors or suppliers. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit, perform, display or create derivative works of any portion of the Service without the written consent of Shutterfly. Nothing herein grants any rights to commercially exploit any portion of the Service or any content therein. All rights not expressly granted hereunder are expressly reserved." Still think it's okay to copy their content?

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