Trademark and Copyright in Sublimation Design

A customer asks for “Mickey” shirts for their next trip to the Magic Kingdom. You see lots of adorable “Baby Yoda” designs selling on Etsy. Other sublimation shops are selling (and advertising!) tumblers and shirts with NFL team logos.

Hold on a minute, isn’t that against the rules?

It's a sticky subject. Discussion of it is even banned in some sublimation groups, because things get heated pretty quickly, and there's a lot of confusion around the topic. It may even be making you nervous about selling your own designs, in case you have unknowingly infringed on someone else’s copyright.

Can I Print That?

So what about copyright, trademark, and intellectual property? And what are the differences between these terms?

It’s a big subject, but it’s important to your business, for you to understand the basics. It can even help you protect your own business and creative work.

In this post, we go over some terms, and talk about what you CAN and CANNOT do with trademarked, copyrighted, or otherwise-protected material.

We're not lawyers, and this is not intended to be legal advice. This post is only meant to cover some of the things to consider when working with and selling designs. To fully understand the legal aspects of this and how it affects you and your work, you might want to talk to an Intellectual Property lawyer.

This post may contain affiliate links for products we recommend (this means that if you make a purchase through one of our links, we will earn a small commission, at no additional cost to you). Full disclosure policy.

What is Intellectual Property?

Intellectual property (sometimes referred to as IP) is any creative work that is unique to its owner. This includes, but is not limited to, things like:

-Artwork
-Designs
-Photographs
-Music
-Videos
-Inventions
-Branding

The owner of the intellectual property may be the creator, but that's not always the case. For example, someone may have contracted an artist to create their company’s logo. The company then owns the logo, and no one else can use it without permission.

How Intellectual Property is Protected

Intellectual property can be protected in a number of ways, depending on the form the property takes. An inventor may file for a patent, for example, so that others cannot profit from claiming to be the owner of the idea or design.

With sublimation printing and design, you’ll generally run into two types of intellectual property protection: trademark and copyright.

Trademark

Trademarks are specific names, words, phrases, symbols, images, or designs that identify a product as coming from a particular source. A trademark is considered an asset – a company's brand name, for example, represents their reputation and products, and comes to have a perceived value.

In the United States, trademarks can be registered with the US Patent and Trademark Office, to become registered trademarks.

You could decide to trademark the name and logo of your sublimation business. For more information on how this process works, check out the US Patent and Trademark Office's page on trademark basics.

Branding and Logos

When it comes to trademark infringement, it's important to remember that trademark protects words, phrases, and designs that identify a company or brand. For example, you can't trademark the word “coffee,” but the name “Starbucks” is definitely trademarked.

You also can't trademark a generic design, but you could trademark a specific logo or color scheme.

Popular Characters

The names and likenesses of popular characters in advertisements or media can also be trademarked – so everything from smiling honeybee on your breakfast-cereal box this morning, to the characters in your kids’ favorite shows are probably trademarked.

Catch Phrases

There are even popular phrases that have been trademarked – Paris Hilton trademarked her signature one-liner “That’s hot”, and eventually sued Hallmark for using it in their greeting cards (they settled out of court).

You might think that since “everyone’s saying it,” you can make a T-shirt using it, but if someone has trademarked a catch phrase, they could legally come after you for infringement.

In 2019, FOX Media filed an application to trademark the phrase “OK Boomer” for an upcoming TV show, but the application was rejected, because the phrase was already in widespread as a meme.

Where This Gets Tricky for Crafters:

It’s not always obvious that something is trademarked. Common, everyday items that we refer to by their brand names are some of the most common places where this comes up. (Tide, Coke, and Kleenex brands are examples.) But companies want those names to be associated only with their own products, and they will sometimes aggressively protect their trademark. (If they didn’t do this, they could possibly lose this ownership, over time, as the word became just another generic term.)

Maybe you’ve heard discussions in sublimation or Etsy groups about the name of a familiar piece of baby’s clothing – a one-piece garment that snaps together between the legs.

Know what we’re talking about? Probably, and you may think of it as a “Onesie”. But Gerber owns the trademark on that particular term. We’re probably not even supposed to type the word without including the registered-trademark symbol: ®.

And if you were selling those items on Etsy, and they weren’t specifically the Gerber brand, your listing might be removed. Yes, they’re serious. Try using the word “bodysuit”, instead.

How to Tell if Something Is Trademarked

So how do you know if something is trademarked?

One way is to look for the trademark symbol (™), but that is not always present.

Some clues:

Is it a brand name? Probably trademarked.

Is it a business logo? Probably trademarked.

Is it a popular character? Almost definitely trademarked.

Is it on an item being sold in a retail store? You get the point.

In the United States, you may want to check the most thorough resource, the Trademark Electronic Search System (TESS), where you can search the US Patent and Trademark Office's database for words and designs that have been registered.

Gerbenlaw.com has an interesting library of well-known brands and their trademarks.

Copyright

Copyright pertains more to original works like books, music, and art, and covers the right to use or reproduce that work. Copyright does not have to be registered with the government to be valid – when someone creates an original work, it is immediately protected under copyright.

Original sublimation designs are copyrighted works.

Can I Use Copyrighted Materials in Designs?

Generally speaking, you cannot reproduce, redistribute, or create derivative works of someone else's intellectual property without their permission. This includes things like:

• Copying, scanning, or digitizing artwork. Changing the format does not change the copyright owner’s rights. That perfect image in a magazine you bought? You’ll still need permission to use it on T-shirts.
• Downloading and sharing files without permission from the copyright owner.
  Someone offering free image “dumps” in a sublimation group? Skip it. They’re often lower-quality images that have been taken from web pages instead of downloaded, purchased files, and they’re mostly likely being shared without the artist’s permission.
  Even if you’ve paid for it – if an Etsy seller gives you permission to use the image, make sure they are the original creator.
• Making a new design based on an existing one. That myth about changing 30% of a design to make it yours? It’s not true, and it won’t help you get out of trouble.

Derivative Art

Creating derivative art does not bend the rules. If you’ve created your own design that looks a lot like someone else’s, the original artist still has protection.

Yes, you may have a work that is “inspired by” someone else’s. But take it further and add your own creativity! Because the rules in this game are clear: if someone looks at your mouse and says, “Oh, hey, it’s Mickey!”, you are potentially infringing on a trademark or violating copyright.

(Disney, in particular, is known for being aggressively protective of its many trademarks – yes, we all love the characters, but avoid that mess!)

What About Fair Use?

You may have heard someone use the term “fair use”. Are there exceptions to copyright rules? There are, but don’t get your hopes up on this one.

Fair use can allow a limited amount of use of copyrighted material without the owner's permission, but it's for specific things like education and research. So you can't just say “fair use!” and get away with using someone else's design.

Even if you are only using a small portion of someone else's work, and even if you are using it for a non-profit purpose, that doesn't mean you're covered by “fair use”.

You also cannot take someone else's design, change it a little bit, and call it your own. So when other sublimation crafters swear that “as long as you change 20% (or some other percentage) of the design, it technically becomes your design”, please do more research!

What About Public Domain?

Items that are truly in the public domain are free to use.

What does that mean? A simple definition is that anything that has run out of copyright protection is now in the public domain.

How Long Does Copyright Last?

According to the U.S. Copyright Office, “All works published in the United States before 1927 are in the public domain. Works published after 1926, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.”

That sounds simpler than it is, since the families or estate of a deceased author could have renewed the copyright.

It's 2022 now. So if something was published or created before 1927, can you use it? Probably, but there may be exceptions, especially when looking at works from outside the United States.

Some popular works have had their copyright continually renewed by the author's family members or estate management, and these works have not fallen into the public domain.

Beatrix Potter’s Peter Rabbit is now in the public domain. Cicely Mary Barker’s Flower Fairies™ are not – her estate continues to renew and control the copyright.

To add to the confusion, if an item or character has also been trademarked (think Mickey), it is still not in the public domain.

The original Winnie-the-Pooh book, by A. A. Milne, is now in the public domain, but not the Disney characters or films.

Where Can I Find Public-Domain Images?

There are some great places to find public domain images. Many of these will be photographs, but there are also posters, book covers, patterns, signs, etc., that could be used in a design.

Check out the Smithsonian's Open Access program if you’re looking for a browsing adventure. They’ve made millions of images available in the public domain.

The U. S. National Archives are full of images that are in the public domain. This account on flckr has put together a great collection from the Archives.

Stock photo sites are a great resource for finding free photos that are available for use in your projects – you can use them as is, or convert them to something unique in your graphics software!

Try out these (check their terms to see if you need to give credit to the photographer):
Unsplash
Pixnio.com
Pexels.com

Free stock photo sites will also often have a great selection of famous artworks: RawPixel.com is a great example of this.

If you'd like printed copies of older graphics, Dover Publications sells collections of public domain images that can be used as clip art.

Creative Commons License

Creative Commons licenses give the public permission to use a work in certain ways, depending on the type (some are available for commercial use, some require giving credit to the creator).

CC0 (CC-Zero) means the work is in the public domain, and has no conditions. (This is the license offered by Smithsonian Open Access.)

What About Google Images?

Google will help you locate an endless variety of images and designs, but they are not giving you the right to use those images. (They're more like the transportation, not the stores in the shopping mall.) You'll still need to contact the owner/creator.

This is so time-consuming – isn't there an easier way to get images and graphics I can use in my designs?

Get Permission

What you can do is get permission to use copyrighted material. This usually means purchasing a license to use the material in a specific way. And believe it or not, this can save you headaches and wasted time down the road, knowing that you have a license to use the work.

Graphics by a particular artist can be bought in places like Etsy.com, or you may be able to purchase their designs directly from their website, along with the licensing to use them in finished products.

Commercial License

For example, a designer may offer a commercial license for an image in their Etsy shop, giving you permission to use it on up to 500 finished products.

Or a font you downloaded may have come with a license that allows you to use the font on any number of your finished items, while not allowing you to share or resell the font file itself.

A graphics subscription site may have a license that allows unlimited use on finished products, with more detailed permissions and restrictions on re-using graphics in your own designs, or sending a design to a third-party, print-on-demand (POD) company.

Each source or designer will have their own licensing terms, so the best rule of thumb is to take the time to find and read those terms (even if you have to ask for them) and then follow those rules.

Subscription-Model License

An individual artist may offer discounts on purchased bundles or a membership that gives you access to all of their designs. (Example: Pink Lemonade Company)

An almost endless supply of graphics from various artists can be had inexpensively through subscription sites such as CreativeFabrica.com and DesignBundles.net. Your license to use these graphics is included in your subscription, and it does make it easier to know you can simply download what you like, and focus on creating products!

You'll want to look over the terms of any license, to be sure they cover what you intend to do with the images – you will have permission to use them yourself, but you may need additional permissions or licensing before you can sell an image to someone else, or send it to a print-on-demand business.

CreativeFabrica has help pages that outline the terms of their subscription license, and of their single-sales license – refer to it whenever you want to check the terms.

Can I Get Permission to Use a Popular Character?

Someone has to be getting a license to use popular characters – so how are they doing it?

Bigger companies will likely have a licensing department that you can contact, but be prepared for a “No”.

Disney, for example, does not work with crafters or Etsy sellers, and their licensing website will not lead you to a place where you can plead your case.

There is no link on this page for commercial use for crafts, but if you follow the link for more info on non-commercial use, you'll come to a page that covers different reasons you might be requesting permission to use Disney intellectual property.

You'll be asked to select a category that best describes what you're asking to do: “I want to make a T-shirt”, or “Seek to sell or buy a Disney character or Disney-themed product on Etsy”

Selecting one of these will immediately bring you to a dead end – either a recommendation to buy your shirt from Zazzle, or an email where you can report unauthorized Etsy sales (!).

Most of the other options are also dead ends.

To get to a real page with a request form to fill out, you can select “Other, not listed above”, and you'll be able to include more information for a specific request. But they have made it abundantly clear that they are not interested in working with crafters.

If you want to go further down the mousehole, the writers over at Mouselets.com cover this topic for Etsy sellers in their post, What's the Deal with Using Disney Intellectual Property?

How Do Other Shops Get Away with It?

You may see shops selling Marvel-themed items, and never being shut down over copyright infringement. Or, you may know someone who had their online business closed, and who then had to pay fines or damages to a company for using likenesses of the company’s trademarked characters.

Why do some sellers get away with this, while others are shut down?

The infringing sellers may be getting away with it for now, but it might also simply be a matter of time before it catches up to them. And the owners of a copyright can not only require that the seller immediately stop listing those items: they might also sue for damages and any profits made on previous sales of the copyrighted material.

In the end, it will be your call as to what you decide to use in your designs. Just make sure that you understand the risks involved. The owner of a copyright may send you a cease-and-desist letter, requesting that you remove your listings. Or they may just contact the platform directly (Etsy, Facebook, etc.) and have them pull your posts, listings, or even your entire business page.

Wrapping This Up

We probably dove farther into this than you wanted to go, and you may still have unanswered questions. We’re working on a list of FAQs to add to this article, so feel free to comment with suggested topics.

Our best advice? Err on the side of caution:

Avoid popular characters and logos.

If you want to use something that wasn't created by you, get permission from the original artist. If purchasing through a subscription or marketplace, find written or documented permission, and keep a copy of it.

The legal language may seem confusing, but once you have a system in place for organizing your licenses and permissions, it won't be as intimidating, and you'll feel comfortable about selling more of your creative work!

And if you do receive a notice that you are using someone else's intellectual property, do your best to cooperate (and do trust, but verify that they are the original owner). It's not worth losing your business over an (admittedly adorable) little green guy from another planet.

There, we’re done. Now, let’s get out of this mess, and go make some stuff!