I design t-shirts. My t-shirts often times cater to current trends; therefore, it would not be feasible to get an entire design copyrighted in time before the trend wears off. The issue I face is design theft. Thieves will steal my entire design and sell the design on a t-shirt for a lower cost thus killing my profits.
However, I have a small design element/logo in which I have copyrighted. I am wondering if I attach that copyrighted element in a small area of my t-shirt designs, would it protect my design if the entire design including my copyrighted design element has been stolen and used commercially?
Keep in mind, most of the thieves I deal with are not smart enough to erase a watermark or small design element and literally steal designs pixel for pixel; therefore, my copyrighted design element would most likely be on the infringing person(s) design as well.
Registration of a copyright is important for many reasons, but technically speaking a copyright exists when something is fixed in a tangible medium of expression.
In addition, it is possible that you may be able to file for a trademark application related to your small design element.
The copyright registration regarding the small element would not typically apply to some other design, which has not been registered.
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The good news is that your designs are protected by copyright without the formality of filing a registration application. Try using a conspicuous copyright notice and legend: "This design is protected by U.S. copyright and infringers will be prosecuted to the fullest extent of the law." When infringers rip you off, you can send DMCA takedown notices and stop the display on the Internet. The "small design element" you suggest is like a trademark (think the Izod alligator or Nike swoosh), but if it is decorative (not a source indicator) the Trademark Office will not consider it a true trademark. The small design element is also a form of "trap entry" --- small hidden traps set for infringers (like non-existent roads on maps) created to "trap" infringers into unwittingly copying them. That's an excellent way to prove coping, if that is an issue. It can also expose and embarrass infringers, possibly shaming them into stopping.
An experienced copyright/trademark lawyer can show you how to cost-effectively protect your intellectual property.
The foregoing is for informational purposes and does not constitute legal advice in a particular matter or the existence of an attorney-client relationship. All answers ©2017 Greg Victoroff, Inc. No further reproduction or use for any purpose.
You only need to have applied for registration in order to bring suit -- you do not have to actually obtain one as your works are protected as soon as they are published. The registration and the application for registration only provide you with statutory rights regarding minimum copyright damages as well as attorneys' fees.
As for your unique design element, you should file a trademark registration as you are using it as a logo and thus, you can obtain trademark protection. I strongly urge you to contact an IP attorney. Many of us offer free initial consultations, why not use one.
Any creative expression will be covered by copyright law automatically. Then you register the work with the US Copyright Office so to perfect your bundle of federal rights like the right to access the courts, the right to ask for statutory damages (sometimes the only damages worth bringing the case over), the right to attorney fees, etc.
If you need further clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
Your potential use of a small, copyrightable design to try to prevent the reproduction and sale of a different, potentially non-copyrightable design smacks of unlawful copyright misuse.
That basic approach was taken by Omega in the Costco v. Omega case. There, Omega affixed a small, copyrightable design on the back of its watches and then sued Costco for copyright infringement when the latter imported those watches into the U.S. for resale. After a trip to and from the U.S. Supreme Court, the trial court held [and the 9th Circuit affirmed] that such use of the logo to try to prevent Costco's lawful importation was unlawful copyright misuse. You can read the district court ruling via the link below. Omega was ultimately ordered to pay Costco the amount that it paid to defend the case. Yes, there are differences between your facts and those in the Omega case. But the copyright misuse rule that applies is the same.
In short, to properly assert copyright infringement the claim must seek a remedy for the infringement of the copyrighted work and not be a ruse for some other purpose.
District court copyright misuse ruling: https://www.scribd.com/doc/74930423/Omega-v-Costco-Copyright-Misuse-D-Cal-2011
No one but your own Mississippi-licensed intellectual property attorney can give you actionable advice on this matter. Good luck.
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.
Your best protection for your designs is to register them. Although the registration process takes quite some time, once a registration is granted, the effective date is the date the last item of the application is received. So, as long as you file your application before you release your design, you can be assured that any infringement that occurs will occur after the effective date of registration, ensuring that statutory damages and attorney fees are available. If infringement begins, you can request special handling, which is much more expensive, but results in quick processing of your application.
A copyright notice is also helpful to preclude an innocent infringer defense, although it is not absolutely necessary in order to enforce a copyright.
Even if trends depart quickly, you have a three year statute of limitations within which to file suit for copyright infringement. Even if you do not plan to file suit, having taken the steps of applying the copyright notice and applying for registration will add to the persuasiveness of any cease and desist letter or DMCA takedown notice that your attorney may send.
If you have a name or logo you are using to identify your work as originating from you, you should consider registering that name or log as a trademark. You should also consult with an attorney to ensure that your use is trademark use and not merely ornamental use on the front of a T-shirt.
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