We want shirts, but don't want to infringe on any trademarks or copyrights.

August 17, 2009 7:07 PM

I run a website dedicated to vintage PC games (that is, games from the late 80s, early 90s). Ad revenue has been declining, and a co-admin suggested making t-shirts to sell to support the site. I have questions about what art/words we can use on the shirts.

Obviously we can't use actual screenshots or art from the games or boxes. We'd also stay away from using the company's logos and the names of the games, assuming that those are also trademarked.

1. Can we use the game's character's names as a t-shirt slogan? (e.g. "Long live King Bob!") What about the names of the fictional lands within the games? (e.g. "I went to the Land of the Purple Isles and all I got was this lousy t-shirt!")

2. My website domain name contains the name of the company who created these vintage games. It's still okay to use my domain name on the shirts, isn't it?

3. Can we use fan-art on the t-shirts that depict the characters or scenes from the games? How different does the fan-art have to be from the actual art from the game?

4. Can we use any quotes from the games?

posted by IndigoRain to grab bag (10 answers total)

Fair Use is the legal precedent in the US that covers this stuff: http://en.wikipedia.org/wiki/Fair_use

IANAL, but as I understand it, the names of the games and of the company are totally fine, as long as it's not the corporate logo or the official game logo, screenshots.

You might also want to check out http://en.wikipedia.org/wiki/Remix_culture

having done a bit of web-stalking, I look forward to seeing snarky King's Quest t-shirts. Possibly 'roberta williams is my homeboy'
posted by Jon_Evil at 7:32 PM on August 17, 2009 [1 favorite]

Tongue and cheek with the (old) competition:
"Serious adventure games - we're not monkeying around with pirates!"
posted by Nanukthedog at 7:45 PM on August 17, 2009

1. Can we use the game's character's names as a t-shirt slogan? (e.g. "Long live King Bob!") What about the names of the fictional lands within the games? (e.g. "I went to the Land of the Purple Isles and all I got was this lousy t-shirt!")

I think you could probably get away with this. Especially if a) the names were never trademarked or b) the trademark is no longer actively used.

2. My website domain name contains the name of the company who created these vintage games. It's still okay to use my domain name on the shirts, isn't it?

Well... it may actually be that the domain name is in violation of trademark. But, if they haven't come after you for the domain yet, I don't think you're any more likely to get popped for the shirt.

3. Can we use fan-art on the t-shirts that depict the characters or scenes from the games? How different does the fan-art have to be from the actual art from the game?

You can't use fan art. It's a derivative work. It doesn't matter "how different". If it's recognizable as a copyrighted character or scene, it's derivative work--actually, it doesn't even have to be recognizable to qualify, but then it gets a lot harder to litigate. So, legally, using fan art runs into the same problems as using the first-party art.

Technically, Nintendo essentially owns full copyright to my napkin drawing of Mario.

Trademark is another completely different sack of worms. I no longer claim to know anything about fair use within trademark, since I've become aware of all the goddamn stupid and illogical rules concerning dilution and the like. I used to believe, however, that you were safe so long as you weren't both a) competing in the trademark holder's market and b) making it appear that you were affiliated with the holder. Now... well... I guess you should ask a lawyer, since they [the lawyers] have made it sufficiently complicated to be intractable without one*

4. Can we use any quotes from the games?

Yes. Almost certainly. Especially if it's in a humorous context that you could call parody.

*Which is why it always pleases me when lawyers have technical difficulties with things that "should be easy and intuitive" and have to hire an expensive expert like me.
posted by Netzapper at 10:21 PM on August 17, 2009

Snarky King's Quest t-shirt...

Rescue the Queen, My Lord?
posted by rokusan at 10:22 PM on August 17, 2009

Netzapper: "
You can't use fan art. It's a derivative work. It doesn't matter "how different". If it's recognizable as a copyrighted character or scene, it's derivative work--actually, it doesn't even have to be recognizable to qualify, but then it gets a lot harder to litigate. So, legally, using fan art runs into the same problems as using the first-party art.

Technically, Nintendo essentially owns full copyright to my napkin drawing of Mario."

Okay, then how does Threadless get away with its Mario-esque shirts featuring mushrooms and pipes? (Unless they actually have permission. I'm sure they have their own team of lawyers.)
posted by IndigoRain at 10:36 PM on August 17, 2009

Okay, then how does Threadless get away with its Mario-esque shirts featuring mushrooms and pipes? (Unless they actually have permission. I'm sure they have their own team of lawyers.)

Well, the ones I've seen have clearly been parody. They've been ironic or humorous comments on the work in question. They haven't just been, "Hey, remember Mario?" type use.

And furthermore, the fact that Nintendo has not chosen to sue these folks is not indicative that they're walking firmly within the law. It's probably not in Nintendo's best interest to be seen as going after people making humorous shirts in a nostalgic and amusing style, and they know that.

If you're doing parody, and you're adding something to the representation, then you have something defensible. But if you're just using a recognizable Sierra background and then putting "sierraplanet.com" on top of that... well, that's not parody, and it doesn't matter if you use a screencap or recreate it by hand in colored sand.
posted by Netzapper at 10:58 PM on August 17, 2009

You're just chatting here. Take your concrete proposals to your lawyer for evaluation.

And "trademark" is not a verb.
posted by JimN2TAW at 11:30 PM on August 17, 2009

And "trademark" is not a verb.

It's English. We can verb nearly any noun. It's one of the language's neatest superpowers.

posted by Netzapper at 3:01 PM on August 18, 2009 [1 favorite]

I can't very well take my "concrete proposals to my lawyer" when I have no idea what is even close to what I'm allowed to use.

Besides which, my lawyer is already busy litigating my car accident. And please don't post accusations of chatfilter in a thread just so you can throw in your grammatical pet peeve corrections in small type.
posted by IndigoRain at 11:01 PM on August 18, 2009 [1 favorite]

"And "trademark" is not a verb."

Who died and left you Webster?

II. verb, transitive., -marked, -mark·ing, -marks.
1. To label (a product) with proprietary identification.
2. To register (something) as a trademark.
posted by rokusan at 10:05 PM on August 19, 2009 [1 favorite]