this is not a trap

March 11, 2007 9:22 PM

can i put this on a t-shirt and sell it?

link

Assume I have the permission of the original artist. Is that enough?

posted by Tryptophan-5ht to law & government (21 comments total)

By original artist, do you mean the person who drew that image or the person who created the image on which it is based?
posted by acoutu at 9:28 PM on March 11, 2007

That really looks like a "derivative work" of Star Wars to me. I suspect marketing a t-shirt with that image would infringe the copyright of whoever owns Star Wars.
posted by Mr. President Dr. Steve Elvis America at 9:34 PM on March 11, 2007

unless it falls under fair use for parody. which is a matter that would have to be settled by a judge.
posted by phaedon at 9:43 PM on March 11, 2007

that shirt's funny as shit, by the way.
posted by phaedon at 9:44 PM on March 11, 2007

I'd buy it. I'd wear it.

That's awesome.

Magritte and Starwars. 2 great tastes in one candy bar...
posted by asavage at 9:44 PM on March 11, 2007

also, if by "original artist" you are referring to the person that come up with concept for the movie, i would make sure that they actually owned the copyright in the first place, and that this particular work wasn't made via a work-for-hire agreement with the studio.
posted by phaedon at 9:45 PM on March 11, 2007

Agree with Mr. President Dr. Steve Elvis America... jeez, what the hell kind of name is that?
Unless the artist has licensing right to Admiral Ackbar from whoever owns it you can't sell it. I mean, I could draw a picture of Mickey Mouse on a t-shirt but just being the artist clearly doesn't give me permission to sell the shirt. Also, in this particular case I think the case for parody is weak.

And on second thought Steve, I really like your name.
posted by PercussivePaul at 9:47 PM on March 11, 2007

In my non-expert opinion, it seems like fair use for parody to me. If I were you, I would probably print them and sell them until you get a Cease-and-Desist letter, which is probably not likely.

Of course, then you stand to lose whatever stock you have on hand.

IANAL and my opinion probably shiouldn't carry to much weight.
posted by JMOZ at 9:50 PM on March 11, 2007

There's a similar concept (copyright-wise) for a shirt on sale on Threadless.com, featuring Darth Vadar trimming hedges. Threadless is a t-shirt site where people/artists can submit ideas for shirts, others vote on them and make suggestions, and the winners get produced and sold. You might want to check that site out for feedback, inspiration, and means to get your shirt made.

Great shirt btw. Has my vote!
posted by iamkimiam at 9:51 PM on March 11, 2007

The issue here isn't copyright, it's trademark. I'd be willing to bet big money that Lucas has trademarked the Mon Calamari.

So if an independent artist created that image, the artist owns the copyright. The artist can license the copyright to you. Lucas is not involved in the copyright. All well and good, except that it still infringes the Lucas trademark and Lucas can -- and would have to -- sue you if they find out about it. Even if you're a little guy. Even if you're just doing it small scale.

That's because if they don't actively defend their trademark even against little guys like you, they can lose it. If they ignore you, then a large competitor can use that as evidence of "abandonment".

The rules about trademarks are entirely different than the rules about copyright. When it comes to trademarks, "fair use" has a different meaning than it does for copyright.

The issue in this case is "dilution" and "non-dilution". Any use that doesn't dilute the trademark is acceptable. Any use that does dilute the trademark is actionable. Fan sites on the web generally are not considered to dilute such trademarks. Your proposed use probably would be considered to dilute it, because Lucas makes a great deal of money by licensing its visual images to makers of paraphenalia of various kinds, including shirts.

So what you're trying to do is to use Lucas's trademark to directly compete with Lucas in one of the businesses that trademark appears in. That's not fair use.

To sell those T-shirts you would need a license from Lucas, even if your friend does the art and licenses his copyright to you.

By the way, IANAL. What I just wrote is my layman's understanding of the situation, and I invite any intellectual property lawyers to correct my mistakes.
posted by Steven C. Den Beste at 9:56 PM on March 11, 2007

By the way, this has come up here before.
posted by Steven C. Den Beste at 10:07 PM on March 11, 2007

I think the guy at Diesel Sweeties had the people at Lucas Arts come down on him for using Star Wars characters in a shirt. I don't recall if he even tried to fight it, or if he just bowed down before their superior lawyers. Either way he lost.
posted by MadamM at 10:28 PM on March 11, 2007

IANAL...If the original artist transferred/assigned the copyright, copyright may still be at issue. And, yes, trademark may be an issue. This may be considered a derivative work.

See the Starwars.com site's terms of use:

...all logos, characters, artwork, stories, information, names, and other elements associated thereto are the sole and exclusive property of Lucas.

and

The creation of derivative works based on the materials contained herein including, but not limited to, products, services, ... and unlicensed merchandise (whether sold, bartered or given away) is expressly prohibited.

To me, that makes it pretty clear that they've got copyrights and trademarks that span the characters.
posted by acoutu at 10:37 PM on March 11, 2007

I was wrong when I said that your proposed use did not infringe copyright. It's clearly a derivative work so it also infringes the Lucas copyright.

Resources: Copyright Basics
posted by Steven C. Den Beste at 12:02 AM on March 12, 2007

well damn :T
posted by Tryptophan-5ht at 2:34 AM on March 12, 2007

SCBD conflates dilution and confusing similarity, but isn't too far off the mark.
posted by exogenous at 6:08 AM on March 12, 2007

Steven C. Den Beste is totally, totally wrong that this is an issue of trademark law, not copyright law. (1) Characters in literary works are clearly copyrightable. (2) They are not trademarks unless they have developed a secondary meaning that is associated with a certain class of products. ("They're in Star Wars" isn't good enough.) Example: the editions of the Peter Rabbit books with a silhouette of Peter Rabbit on the cover. There the silhouette of the character identifies the brand of book.

The t-shirt is certainly a derivative work of the copyrighted Star Wars movies. The only question is whether it falls into fair use as a parody. Are you making fun of Star Wars or of the painting (or of some other thing)? Is it the minimum appropriation needed to do so? There are many, complex factors that go into this determination, and this case is not clearly on one side or the other.

Basically, if you want to be safe, you shouldn't produce it. A company with money wouldn't do so, because their lawyers would tell them not to. On the other hand, they're also a better litigation target. If Lucas noticed, they would probably send a cease-and-desist but not do anything more. On the other hand, if you made a small number and didn't distribute them widely, they would probably never know. So it mostly comes down to your taste for confrontation.

(IAAL who practices intellectual property law, but I am not your lawyer. This is not legal advice. Consult competent counsel.)
posted by raf at 8:08 AM on March 12, 2007 [5 favorites]

If it is any help (not sure since you picked the best answers already), Threadless has printed Dark Side Of The Garden at least 3 times (that I am aware of) with no comment from Lucas. In fact, I believe I've seen pictures of Bonnie Burton, the it girl around the the star wars website & the author of "You Can Draw Star Wars", wearing that tshirt.
posted by aristan at 9:03 AM on March 12, 2007

IANAL but I wonder if you could at least offer the image and instructions for affixing it to ones own shirt. Ask for donations to be made directly to a charity (maybe even offer a paypal opportunity to do so on the website). This is clearly not the cash you are looking for, but it's something good to come out of a cool design.
If you are able to offer it, please consider discounts for MeFites. And if you can incorporate a pipe in there you'll have made my day.
posted by monkeymadness at 10:13 AM on March 12, 2007

You might get away with it if your site is small, but I would imagine you'll get a C&D pretty quickly, and I doubt you'll actually want to go to court with Lucas, regardless of the merits of your case. He's generally pretty stringent with his "intellectual property"
posted by delmoi at 12:25 PM on March 12, 2007

R. Stevens of Diesel Sweeties fame was sent a CnD from LucasArts for selling a t-shirt that said "Chewie is my co-pilot" in the Star Wars font.

If they see this, they'll make you stop. It's an AWESOME shirt design, but that's without a doubt a trademarked character.
posted by XQUZYPHYR at 8:16 AM on May 10, 2007