In today’s super connected world, it’s easier than ever to find terrific, inspired artwork. All it takes is a simple keyword search in your favorite search engine, and you’ve got a treasure trove of images from which to choose. But before you grab something off the web to use on your products, think twice.

Too often, we hear stories of makers using such material in their own products, only to face harsh consequences from the owners of those artworks. It is crucial that makers of decorated apparel and merchandise understand the complexities of copyright law when using such material in your creations.

In this article, I’ll summarize some of the key issues and provide a roadmap to help you navigate these murky waters safely and responsibly.

Copyright Law Basics

Just because you find something freely available online, does not mean that it is automatically free for public use. In fact, the exact opposite is nearly always true.

Copyright law protects original works of authorship, such as artwork, music, video, literature, or any other embodiment of original, creative effort, automatically from the moment of creation. The author is the work’s owner and holds exclusive rights to control how it is used, reproduced, distributed, displayed, or performed. Copying, sharing, or other use of the work without the owner’s permission amounts to copyright infringement. So, when you download, rework, reprint, or otherwise make use of that art you found on the web, it’s likely violating the artist’s rights.

Duration of Copyright Protection

Although copyright protection does expire eventually, it still lasts quite a long time. Works created after January 1, 1978 enjoy protection from the moment of creation until 70 years after the author’s death, or 125 years for works-made-for hire (i.e., material created by employees for their employers). Prior to 1978, most works received protection for a maximum of 95 years. As of this writing, then, copyright for works created prior to 1928 has expired, so they are in the “public domain,” and thus free of any copyright protection.

Fair Use

“But I’m only using a tiny bit” or “I’m not making any money from it” are common refrains heard from people who wish to make use of copyrighted works without permission. These arguments are based on misunderstandings of the defense known as fair use.

Fair use recognizes that, in some instances, in the U.S., the First Amendment’s protection of free speech requires an exception to copyright law. But this defense requires a complex and subjective analysis that must be performed in court for each alleged instance of infringement.

Courts use several factors to guide their determination, including the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the original work. But it’s important to note that no one of these factors is determinative, and a recent case involving Andy Warhol’s adaptation of a photograph of iconic musician Prince has made this defense much more challenging and less reliable.

Consequences of Copyright Infringement

For copyright infringement that occurs online, the most common consequence is a DMCA takedown. This procedure makes it possible for a copyright owner to quickly and easily have the infringing material removed from websites where it’s been hosted. Repeat infringers may see their accounts on such sites terminated, which can have a deleterious effect on any modern business. Stories abound of infringers’ Etsy or Shopify stores simply disappearing overnight, leaving them effectively out of business.

The other remedy a copyright owner can pursue is a lawsuit. In the United States, claims of copyright infringement are always handled in the Federal Courts. (Yes, that makes copyright infringement a “federal case”).

Judges in copyright cases may issue restraining orders and injunctions preventing the distribution of infringing material. And money damages for infringement can range from as little as $750 per infringement to $150,000 per infringement or more. Successful plaintiffs who’ve registered copyrights in a timely manner can also recover their attorney fees, which can often climb into the millions of dollars. Win or lose, defending a copyright infringement lawsuit is a tremendously expensive, time-consuming, and headache-inducing proposition — one worth avoiding wherever possible.

Avoiding Infringement

The best way to avoid claims of copyright infringement is to create and use only original artwork. Next best when that’s not possible is to conduct some due-diligence. Obtain licenses for the artwork you use.  Some approaches include:

  • Public Domain: Works for which copyright protection has expired may be used freely. Just make sure you’re not using a more recent adaptation or restoration;
  • Creative-Commons Licensed Artwork: A number of websites are available that offer a range of images that can be used without infringing copyright;
  • Royalty-Free and Stock Image Libraries make this relatively easy, just be sure to understand the terms and conditions governing your use;
  • License from the Owner: Often, identifying the owners and asking for permission can be surprisingly easy and affordable. This is essentially what’s happening when you purchase stock artwork.
  • Obtain Legal Advice: If you’re unsure about the copyright implications of your proposed use, or the terms of license agreements, it’s important to consult with a legal professional knowledgeable about intellectual property law.

Conclusion

So … the bottom line is this: While it may be tempting to just use that artwork you found online, it’s important that you understand the complexities of copyright law and the potential consequences of infringement. By following the guidelines outlined in this article, it’s easy to safely navigate these murky waters and respect the work and rights of other creators.

Remember, the best way to avoid claims of copyright infringement is to create and use only original artwork, or to obtain proper licenses from the owners. With a little due diligence and legal advice, you can protect yourself and your creations while still finding inspiration in the vast world of online art.