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Can I put a symbol from a video game on a shirt I am customizing?

Tampa, FL |

There's this video game I really really like and I want to customize a shirt with a symbol from the video game on it. I would get the picture from the video game's website or somewhere on the internet? The shirt would just be for me to wear I wouldn't sell it nor replicate it. Can I do this?

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Attorney answers 4

Best Answer
Posted

You can probably get away with doing this action, because you will be making this shirt for only your personal use. However, I do not recommend you do this or engage a third party to print this shirt for you, because it is very likely either a trademark or a copyright infringement.

You may not have to worry about trademark infringement issues in the symbol unless the symbol is so iconic that it is representative of the video game as a whole and perhaps even as the source of some video game (e.g., the distinctive mushrooms from Super Mario Bros. being used on a product to indicate that the product's source is Nintendo ). Nevertheless, there must be some level of secondary meaning or source indicator associated with this symbol if you are wanting to include the symbol on a shirt for people to see.

Copyright will exist in the original, creative design elements in the symbol and these original designs are likely owned by the video game company or other third-party source code provider. Your replication of this symbol will infringe the copyright owner's exclusive right of reproduction and adaptation for derivative works. Copyright will also exist in the image of the symbol that you pull from the video game company's website.

Perhaps you could see if the video game company has released a patch of this symbol that can be sewn into or incorporated into your custom shirt.

The foregoing response is provided for general informational purposes only and is not a solicitation for business. Please retain an attorney if you need specific legal advice. No attorney-client relationship is established until both you and me agree to establish one, and neither transmission of information herein, nor the receipt of such information, constitutes an agreement to establish an attorney-client relationship.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

You note that "Your replication of this symbol will infringe the copyright owner's exclusive right of reproduction and adaptation for derivative works." I suggest otherwise. Even when a complete work is copied, if only one copy is made and is only made for personal use then, under the doctrine of de minimis non curat lex (“the law cares not for trifles”), no action for copyright infringement will lie. Ringgold v. Black Entm't Television, 126 F.3d 70, 76 (2d Cir. 1997); Debitetto v. Alpha Books, 7 F. Supp.2d 330 (S.D.N.Y. 1998) (single instance of identical copying is insufficient as a matter of law to support a claim of improper appropriation of protected expression.); 2 Nimmer on Copyright § 8.01[G]. In short, it is NOT an infringement to engage in even literal, exact de minimus copying.

Joseph Sampson Ford Jr

Joseph Sampson Ford Jr

Posted

My initial statement on this question says that the Questioner can probably get away with this act, so I agree that this is not going to trigger an action. However, I cannot tell from the Questioner's facts how the shirt will be printed. Printing the shirt at home will be fine, but if the Questioner uses a third-party t-shirt printing company, then there may be contractual restrictions in the vendor agreement that prohibit using existing marks. There will also be more than one copy made from the initial download rip by the Questioner to the Questioner's uploading of the image to the t-shirt printing company's servers. The t-shirt printing company will then make further replications when the company transfers the image from the uploaded digital file to a screen printing. What if the company then decides to include this shirt in its custom store for others to purchase while attributing the design to Questioner? These facts were not stated, but these things must be considered before giving this Questioner the okay to print a t-shirt that is using someone's existing symbol. This is probably still a de minimus use, but the use of a third-party t-shirt printing company, if any, would cause me to analyze this question a little bit more.

Posted

Q: "The shirt would just be for me to wear I wouldn't sell it nor replicate it. Can I do this?"
R: Yes. Even assuming the "symbol" is copyrightable and serves as a trademark, making one shirt for your own personal use that displays that symbol and which will neither be sold nor given away is not conduct of any concern to the law. And, no, making one copy of a copyrightable work that will see most of its life in a dresser drawer is not even "technically" copyright infringement because it's de minimus.

The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Posted

Can you? Yes, Should you? maybe.
In principle you should not use somebody else's property, such as trademarks and copyright. having said that, your propose use appears to be de minimis, meaning let him go, and most likely will not be prosecuted.
Of course if you like to sell it to your friends, then you are on your own and the maybe turns to a stern NO.

USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my answers or comments in AVVO.com create an attorney-client relationship with you. You may accept or disregard my free advice in AVVO.com at your own risk. I am a Patent Attorney, admitted to the USPTO and to the Florida Bar.

Posted

As long as you're doing it for your personal use, not selling it or mass producing it, you should be fine.

I focus my practice on (video) gaming industry, casino gambling, and complex internet law issues, electronic free speech, entertainment law, copyright and trademark law, and computer fraud. I primarily represent game developers and founders of emergent internet technologies. The author is a Maryland attorney; however no answer given on Avvo is intended as legal advice or intended to create an attorney-client relationship.

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