Off the Cuff: Caught in the Copyright Middle

In the decorated apparel industry, it’s only too easy to unknowingly violate copyright law. Do you have a policy to protect you from such occurrences?
Dec 3, 2007

By Mark L. Venit, MBA

A good customer places an order that requires you to digitize and embroider the likeness of a popular cartoon figure on 72 golf shirts for a school fundraiser. You know that the art includes a copyrighted work, however, and like most ethical, intelligent professional embroiderers, you politely tell her you cannot perform the order without her providing you written documentation that she’s authorized to use and sell the work in question — even with all her verbal assurances that there’s nothing to worry about and that you’ll be “protected.” No-brainer here. You turn it down or accept the job per your own policies and judgment.

But what about receiving an order for work where you don’t recognize the image, and in fact, have never seen it before? And if you later learn it’s copyrighted, are you off the hook legally? Then again, what are the odds of being caught?

The odds of being caught might be small, especially if your shop is in a small Midwest town and the order will be shipped to Alaska. But does that make it OK to run? No, it doesn’t, but that’s your call.

Should the copyright holder find out about the item, however, and decide to make an issue of it legally, your liability, technically speaking, is the same as the person who asked you to reproduce it — even if you had no idea you were inadvertently and completely unknowingly infringing. As long as you fess up and cooperate in coughing up the name of the customer, it’s likely you’ll get off with a slap on the wrist without further hassles — this time.

If you’ve been in the embroidery or screen printing business for a while, you’ve probably unwittingly reproduced a copyrighted work without authorization. In reality, this type of offense comes with the proverbial territory and rarely rises to the level of litigation, though I could recount many a horror story about those that did.

In those cases where apparel decorators have been compromised and get a call or letter from a lawyer about the situation, it’s usually settled quickly with a cease-and-desist order in exchange for the owners’ promise not to do it ever again — cross my heart and hope to die. Whatever else happens will likely ensue solely with the buyer.

A copyright indemnification clause, added to whatever else you stipulate on your company’s order and/or acknowledgment forms, will in most cases establish your policy, protect you and set your customer straight. For your convenience, I’ve appended below a sample clause for your use, courtesy of the Apparel Graphics Institute Ltd. To be on the safe side, have your lawyer look it over to make sure it conforms to your state’s copyright and trademark statutes:
In the event that (your company name HERE)) is to embroider or imprint at the request of a Buyer a likeness of a person, product, logotype or any other device provided to us by the Buyer, Buyer hereby represents that said likeness is being produced with the knowledge and consent of the individual or entity having the rights thereto. Upon request of ( your company), Buyer shall provide the company with evidence of authority to produce such likeness. Buyer agrees to hold (company) free and harmless from all liability and indemnify (your company) for any loss, damage, or injury which (your company) may suffer as a result of producing said likeness. The obligation of the Buyer shall extend to payment for all legal fees and other out-of-pocket costs incurred by (your company) as a result of the reproduction of the likeness requested by the Buyer.


Mark L. Venit, MBA, is president of Apparel Graphics Institute Ltd., Ocean Pines, Md., which provides management and marketing consulting and proprietary research to apparel graphics companies throughout the Americas and Europe. He is also the chairman of ShopWorks Software LLC, a provider of industry-specific business software. Venit teaches pricing, strategic marketing, salesmanship and other business management topics at the Imprinted Sportswear Shows. You can reach him at markvenit@cs.com.