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Fair Use and Other Defenses

What's fair use?
How can parody be fair use?
Is it okay to upload fan art?
Is it okay to upload mashups?
Is it okay to upload an image I have found?
Can I upload and sell artwork if I have a Creative Commons license or other license for it?

What’s fair use?

Generally speaking, fair use is as it sounds: it designates that your art fairly uses different elements created by others. It’s a type of legal defense that may be used in some countries in response to infringement allegations. If your artwork uses elements of someone else’s protected content, and it’s determined to be fair use, your artwork would not infringe. But the only way to find out for sure if your artwork qualifies as fair use would be to go to a court of law.

Remember, not every country recognizes fair use and in the countries that do recognize it, the interpretation may vary. For example, there is no general "fair use" defense in Australia, whether in relation to copyright or trademark use (although there may be limited defenses or exceptions on which you could rely, depending on all the circumstances).

Copyright and fair use

If a judge or jury were to consider whether your work is fair use in the copyright context, a number of factors may be considered, like:

  • What is your work’s purpose?  

If you sell your artwork mainly for commercial gain rather than another purpose, like commentary or criticism, this is a factor that could weigh against your artwork being considered fair use.

  • Would sales of your artwork deprive the original rights holder of income?

Perhaps the t-shirts you sell on Redbubble look a lot like official merchandise sold through the rights holder’s website. It could be seen that your t-shirts could compete with theirs, and this is a factor that could weigh against your artwork being considered fair use.    

 

All of the original content has been used in the new artwork.

  • How much of the original content is used in your artwork? 

Let’s say you took a screenshot of a video game character, and sold it on a smartphone case, and it’s not different at all from the original video game character. Even if you change the character’s appearance when you use it in your own artwork, your rendition may still look similar enough to the original that your artwork could be considered infringing.

Fair uses of trademarks

If a judge or jury were to consider whether your work is fair use in the trademark context, they would consider whether your work is a:

  • Descriptive fair use

Some trademarks have a descriptive meaning as well as their secondary meaning as a trademarked word, for example the word “apple.” Even though “apple” is a registered trademark, the descriptive meaning of course refers to the fruit.  

  • Nominative fair use

This is when someone uses a trademark to actually refer to the trademark owner or to identify a product or service of the trademark owner. For example, if you want to sell a t-shirt that says “I DON’T LIKE Watchimadoodad Company.” You can probably use the trademark Watchimadoodad in your artwork if you’re actually using the word Watchimadoodad to refer to the Watchimadoodad brand.

For both descriptive and nominative fair uses, your artwork shouldn’t create confusion in the marketplace. In other words, ask yourself whether a consumer would think your artwork is sold or endorsed by the owner of that trademark.

Fair use is a really muddy topic and one person’s fair use can be another person’s unfair use. If you think your artwork is fair use or if you’re just generally unsure if it infringes another person’s rights, it’s best to consult an attorney for advice.

But keep in mind that the only place fair use is truly decided is in a court of law.

How can parody be fair use?

A parody may qualify as a type of fair use, but again successfully asserting a fair use defense can be difficult to accomplish. In order for your artwork to qualify as fair use of this nature, it must provide critical commentary on the original work. Simply identifying your work as a parody in its title or description or tagging it as a parody is not enough.

While moustaches are hilarious, they might not be enough to constitute parody.

Parody is a little different from satire, which comments on something other than the original work and is less likely to qualify as fair use in the United States. In Australia, there is a specific exception to copyright infringement for fair dealing with copyright protected material for the purpose of parody or satire.

Is it okay to upload fan art? 

It depends on the particular work of fan art and whether or not it infringes someone else’s rights.

Broadly, fan art is a work that is inspired by another person’s content. The other person’s content is often protected by copyright, trademark or a similar right, and is usually fictional, like from your favorite movie, comic book or video game.

By the very nature of fan art, your artwork may draw on elements of another person’s intellectual property against that person’s wishes, making it very tricky to determine if any particular work of fan art infringes. Think about how the fair use principles apply to your fan art and if you’re not sure whether you’re infringing on someone else’s rights, it’s always an option to speak to an attorney for intellectual property advice about your particular works. But regardless, keep in mind that a determination of whether something will be found to be infringing is incredibly fact specific and could easily be decided in different ways in a court of law.

Even this gallant attempt might not hold up as fair use in court.

Is it okay to upload mashups?

It depends on the mashup itself and whether it infringes someone else’s rights.

A mashup is a work that blends multiple elements of another person’s content to create an interesting result. For example, your artwork could combine a cool wombat, a videogame character, and a couple of company logos.

But all of these elements may be someone else’s intellectual property, and you may be infringing their rights by using them in your mashup. Keep in mind that just because your mashup may combine many elements of others’ content, and your mashup isn’t a direct copy of any of them, this doesn’t mean your mashup is okay.

An attorney who specializes in intellectual property may be able to help you figure out whether your mashup is likely to be infringing.

Is it okay to upload an image I found?

Generally, no. The Redbubble marketplace is a place to display and sell your original artwork. If you copy an image from anywhere (like a photo from the Internet or even graffiti from a city wall), and you don’t have permission from the owner of that image to use and sell it, please don’t upload it to your account. Doing so would be a violation of our User Agreement, and you must always comply with our User Agreement and our published policies.

Can I upload an image if I have a Creative Commons or other license for it?

Stock photos: where salads are hilarious.

Many image websites or other photo sharing sites provide licenses for commercial use, either free (like Creative Commons) or for purchase (like many stock photo websites). As long as you have the right to use and sell the image, and follow the attribution requirements or other terms of the license, it’s probably okay to integrate it into your own artwork and upload it to Redbubble as long as it otherwise complies with our Intellectual Property and Publicity Rights Policy, User Agreement and other published policies.


Obligatory Yet Very Important Legal Disclaimer:

Don’t be fooled by any complicated jargon (and how snazzy we look in pinstripe). We are not your lawyer and this is not legal advice. We recommend contacting an attorney if you need an actual legal consultation.

Rather, this is general information aimed at giving you the legal lay of the land. While we can’t defend you in court, we know that art and IP ownership can be murky territory; the least we can do is arm you with the right kind of knowledge to get you started.

 

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