I've wanted to write something like this for a while but this subject just really burns my waffles, and it makes it hard to be coherent about it.
First of all I just want to say that I think the way that copyright and trademark law works now isn't ideal and should be changed. I think that copyright and trademark should last until the creator dies or maybe like, a little bit after; and I also think that once something falls into the public domain, it shouldn't be able to be re-copyrighted/re-trademarked, I think it should just be fair game forever.
For example, I think that if I created some kind of novel design that sold amazingly well and made up a large part of my income (and I thus trademarked the phrase or copyrighted the design applied to a product category), then it should only last till I die. I don't think it should be taken on by my family/estate, or be able to be revived. If I'm dead it's fair game and I don't care because I'm dead, so have at it.
Second of all I wanna take a moment to define copyright and trademark because they are not the same thing:
Copyright applies to artistic and literary works and I like to think of it as "a design applied to a product" - so for example, a very specific and unique phrase applied to accessories (I mention below my "little tit" badge, which is a fairly good example).
I think of it like this because copyright applies to things that are tangible or "recorded. Copyright is automatic. You don't have to apply for it. If I create a painting or illustration, it is copyrighted by default. That means you can't reproduce it without my permission (and if you do we'll fight).
Trademark is a little different. It applies to specific words, phrases, designs, slogans or logos. A lot of companies trademark their names and/or logos. You'll see below there are certainly some frivolous trademarks and I am generally against frivolous trademarks but I still avoid them because I'm not in a habit of getting mad about things I can't change like I'm already mad pretty much all the time so that won't help.
(That said, you can challenge upcoming trademarks [for example if you had been making some design/product for three years and someone tried to trademark it you could counter it and say nah bitch I've been here three years] and I may write about that in a future post!)
Source on the above
So, I know this question is burning a hole in your head... how do I not infringe on copyright and trademark?
1) Have your own ideas - now sometimes these may overlap with other peoples' ideas, of course. Nothing is really new or original... I'm certainly not the first person to put "do not touch me" on a badge. But some of my designs are a lot more unique, and nobody else makes them (take, for instance, my "all you have to do is not be an ignorant little tit, why is that so damn difficult?" badge... now if I see that on a badge (patch, tee, etc.) sold by someone else, I'm gonna be fucking suspicious lmao).
The above design also sums up how I feel about understanding copyright and trademark law, actually, so take a moment to study and absorb the sentiment.
2) Don't use existing characters, just fucking don't (THIS INCLUDES FUCKING FAN ART) - okay so basically don't even get me fucking started on selling fan art. If you don't own a character, don't use them. Making fan art is totally fine, but don't sell it. It only hurts you if you want to sell your original art (nobody is gonna give a shit about your original characters when they can get a painting of an existing character they already know and love instead - by which I mean it's a lot harder to sell your own characters because nobody knows them), and it hurts EVERY OTHER FUCKING ARTIST trying to break into the market selling original character work drowning in a sea of unlicensed fucking Harry Potter and Pokemon.
NB: the lines do blur a little into a grey area with "fair use" but I don't feel I know enough about where those lines are and where they blur to comment on it. If you do know and have the time to educate me, I'm all ears but I personally stay away from selling fan art to be safe and also because it doesn't really fit in with what I sell anyway.
3) Don't even use tags/titles including copyrighted or trademarked phrases/characters/items (yes, I'm serious) - you can make a wizard wand, go nuts, those things are bitchin'... but you cannot then tag it as Harry Potter. No, not even "Harry Potter inspired". HARRY POTTER DOESN'T BELONG TO YOU. Get over it.
4) Check before you create something - I've been caught out before; we all have. The most surprising ones I've been caught out on were "fight like a girl" (I actually got a cease and desist for this one - it's scary, so I would recommend AVOIDING IT); the other was specifically the phrase "lady garden" (for my flower crotch enamel pins/hand painted wall hangings and badges). The latter I changed before I got any C&D because I didn't want a C&D because my business is my only job and I don't want it destroyed. I just didn't know it existed - a mistake we've all made, but I checked and saved myself another scare (or potentially worse than a scare).
There are a bunch of different copyright and trademark checkers where you can have a look-see and check that you're not using a phrase that's trademarked or a design that is copyrighted. I use the UK government website for intellectual property and a website called Trademark Eagle.
5) Don't fuck with any trademark/copyright but ESPECIALLY do not fuck with Disney or Warner Bros - they're gonna chew you up and spit you out and I'm gonna have a great time watching, especially if you knew you were infringing.
6) There are frivolous trademarks, which is unfortunate and some of them perhaps shouldn't exist, but they do - again, get over it; don't fuck with them (unless you wanna lose your business). Some of these rather frivolous ones include "bride tribe" and "shabby chic" - but unless you were using the term before it was copyrighted, you've no real right to be pissed off because you should have checked; just don't use them.
Update: a previous iteration of this blog included "onesie" as a frivolous trademark and I'd like to retract that, I kind of more meant "onesie" as something you may not know is trademarked, much like Velcro or Hoover. I wrote this blog in the heat of the moment after discovering that one of the most frequent searches on Etsy is "Harry Potter" (TRADEMARKED DANG IT). Thank you to those who pointed out that onesie is more of a brand name and that it definitely existed well before I was born. ;)
7) Some people do have a license; but don't assume they do (or that they don't!) - so yeah, some people are actually going to have forked out to get a license from Disney, or Warner Brothers, or Lucasfilm (now part of Disney, of course)... but don't assume that you're buying from somewhere that has a license to sell what they're selling. These licenses are notoriously hard to get and they are also prohibitively expensive.
At the same time though, probably don't go messaging a store on Etsy like "I know what you did!!" because that's confusing and alarming and also it's a waste of your time. Go better your own business, boo, and don't worry about what they're doing. We can't all be the copyright and trademark police but we can try and boycott sellers who infringe (I won't buy from a store on Etsy if they're selling infringing work, regardless of what I was going to buy from them or how much I like it).
And if you're reading this list and feeling defensive... maybe ask yourself why? Are you infringing on copyrights and/or trademarks? Why do you think that's okay? How would you feel if someone stole your work - the work that you earn your living from - and decided to sell it, potentially reducing your income as a result?
Don't get me wrong, I understand there's a scale difference here. A small seller crocheting Disney themed plush toys isn't taking food out of Disney executives' mouths, of course... But you need to understand that all these ideas, these beloved characters, start somewhere, with someone. Probably one person, just like you. And they worked their fucking ass off to get it to the point where people think it's cool to steal (because make no mistake, that's what it is) and profit from it.
So please, don't fucking infringe on copyright and trademark; don't buy from people who you suspect may be infringing on copyright and trademark (unfortunately it is difficult to tell but honestly if they're a small [also difficult to define, sorry!] shop selling on Etsy or something, they likely don't have a license); and do not @ me. I don't care if you think infringement is okay; it's not, and if you think it is you're gross.