Where's the Line Between Fair Use and Copyright Infringement

Where's the Line Between Fair Use and Copyright Infringement

When many people are thinking of making their own clothing line, looking to promote their business, or are just wanting to create some clothing for their friends or family they may start to ask themselves about copyright and if they might be infringing it. Especially if you’re wanting to do a parody or make a reference to an existing brand or other intellectual property. The line that has been drawn between the fair use of material and copyright infringement is one that is blurred for many individuals. A basic explanation of fair use is the use of copyrighted material for a for transformative purposes. This means that certain uses of copyrighted material do not require any permission from copyrighted owners.

Some common situations in which fair use is applicable are:

  • Commentary or Criticism - By using the images or words of another group, you could find yourself in trouble water, even if you reference them. To classify something as free use in this way you must be making a statement with your design or words. Transforming the original piece to make a criticism or point.
  • Reporting News - This one doesn’t apply to creating branded apparel or designs, but is good to know all the same. Basically, the summary of material, including direct quotations, for the purpose of news reporting, is supported under the rules of fair use.
  • Research - Quotations consisting of short passages to be included in scientific, scholarly, technical publications is acceptable under fair use principles. Again, this doesn’t apply as much but is a classification within fair use.
  • Educational Use - Teachers who photocopy or duplicate material for use in the classroom is acceptable behavior under fair use doctrine. This is the last example of things that don’t necessarily apply in the context we’re discussing but is good to know all the same.
  • Parody - Anyone who quotes material for comedic purposes are permitted to do so under fair use policies. This connects heavily into the use of designs and logos since there is quite a substantial market for shirt designs and logos that poke fun at the original brands or companies. Parody is also used in many instances of referencing pop culture, or combining multiple pop culture intellectual properties together.

In the event of a copyright infringement legal claim, it has to go to court. When a court considers whether the use of copyrighted material is fair use or not, there is a specific set of factors that will be taken into account. Usage that is non-commercial in nature is more likely to be considered fair use. So making a design for a t-shirt for a company that oddly looks like, or is mimicking a popular brand or logo for your friends and family isn’t going to be a problem. However, if you’re thinking of starting a business and your logo looks like another company’s logo, that’s a problem. Conversely, the use of copyrighted material belonging to others for purely commercial purposes causes a fair use finding to become unlikely. So if you’re putting Nike or Adidas logos on wholesale clothing and selling it to people, you’re breaking copyright laws. That’s perhaps a little over the top but is a good example of what is guaranteed to cause a problem.

Relevant: New Media Right

Factors of Fair Use

The line between fair use and copyright infringement can sometimes be difficult to discern. Consulting with a legal expert can help you avoid common copyrighting pitfalls. Factors considered by people when determining whether an infringement constitutes fair use are

Is something new being created? The single most important factor when someone determines whether the use of copyrighted material is fair is the intent of the usage. The applicable point is whether the use of the material is to create something completely new or just being to copy the original. This is where many people find themselves in the clear, or in hot water. Is your design a twist or parody of the original, or is it just a thinly veiled replica?

Is the copied source a competitor? The use of another's work in a way that could possibly decrease the market potential of the copyright holder is strictly prohibited.

Author credits are sometimes not enough. It is a common misconception that providing credit to the original producer of a work makes its use acceptable. That is not true. Credit and fair use are not synonymous issues.

The amount of material used is important. The larger the amount of material that is taken from an original source, the more likely it is that the action will not be deemed as fair. As a general guide, never reproduce copyrighted material that doesn’t belong to you, but if you do choose to, the more you make, the more likely you’d be to get caught. Making reference to something in your design is almost certainly alright unless the owner of the original piece of work is overzealous, in that case, do your research before you use it.

The quality of work is important. Fair use is less likely to be the determination of a court when the portion of a work copied is considered to be of high importance to the overall work. A good rule of thumb is to take only the amount of a work from someone else that you would approve of if the work was your own.

Relevant: Revision Legal

Copyright Infringement

When copyrighted material is used in a manner that violates the rights of the copyright owner, the action constitutes copyright infringement. This infringement can occur in a number of ways. Copyright infringement is essentially when you use an image, written work, performance, or any other type of media that is the exclusive right of the original producer of the work. There are even instances of copyright infringement done within an organization. In Major League Baseball, for instance, many jerseys and other products with the logos of teams are made without the permission of the copyright holder, but due to the sheer volume of products made, it’s almost impossible for the owners to claim or sue any one group.

Relevant: Digital Media Law Project

Infringing on the copyright of another is against the law and can bring with it a wide range of civil punishments. In extreme cases, criminal charges are possible.

It is important to remember that copyright infringement is a wide-reaching term that can be used to include a great number of actions.


As you create your designs for your shirts and other branded clothing, you need to keep copyright in mind. Copyright is permitted as long as the individual borrowing from the copyrighted work remains mindful of the line that exists between fair use and infringing on the copyright of others. While thinking of designs for your company for branded apparel, or for your own personal projects, it’s always a good idea to workshop your design and see if people feel it’s copying another image or logo to steer clear of murky legal waters.

The process of determining where this line exists can sometimes be complicated. When in doubt, consulting with a legal expert can help you avoid common copyrighting pitfalls. With all this information, be warned about your designs for business or personal use.

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