Designers and business owners often wonder about using clip art when designing logos for their or their clients’ business.  Should I hire a designer or come up with something on my own?  Should I use clip art? 

Two things are going on when you create a logo for your business or product. One, you are creating work of authorship that is subject to copyright protection. Two, you are creating a brand (sizzle…mooo!  I hope people don’t still brand cows) that designates the origin of the goods or services you are marketing and that distinguishes them from the goods or services of others, a trademark.

Copyrights are about original  works of authorship. Trademarks are about marketing. 

Copyright infringement (use without permission) is all about originality.  If someone is using art that looks identical to yours, that would be ok if it was created independently.  For example, two people painted independent images of a frog that just happen to look very similar.  As long as its independently created, you are ok. However, if you copy the image, that would be copyright infringement.

 

Trademarks infringement is all about customer confusion–does a competitor’s use of the same or similar mark trick the public or trade on my goodwill and reputation? With trademarks, it doesn’t matter if its independently created if it causes confusion.  All that matters is who used it first and whether it is distinctive.  So a trademark protects use of the image in similar industries or for similar goods. A copyright protects the work no matter how it’s used.  (This issue only comes up with logos, because they are both works of arts and may serve as a trademark.  For “word marks”  we’d likely only be dealing with trademark issues.”) 

 

Now about clip art.  Someone else owns the copyright to that.  So, when you use it, you only have a license.  The license is generally contained in the clip art library you buy (CD or download.)  You should read that to see what your rights are. For example, you may have to right to use it on the web or on promotional material, but you will rarely, if ever, “own” it.  This is fine if you are using it on your website or in a product piece, but it’s an awful idea to use clip art for a logo. You should always hire a designer or come up with your own logo.  Here’s why. 

 

From a copyright point of view, you can only register copyright to your original artwork, or artwork that you own (say, by purchasing the copyright from another party.)  If you register it.  You can sue people who rip you off, you can force people to take the image off of web sites, and you can possibly force them to pay you statutory damages and attorney’s fees.  If you don’t own the copyright (and a registration for your logo’s copyright.) You don’t have any of those rights.  Worse, the person may also have a license to use the clip art, in which case you can’t do anything at all. Imagine the impact of seeing “your” logo used in connection with something that offends you or competes with you, and not having the power to do anything about it.  Not so great.  

 

From a trademark point of view, the issues are different.  Trademarks allow you to protect your “distinctive” mark from confusingly similar marks that might trick your customers into thinking certain goods or services come from the same place.  For example, the Apple logo.  If someone were to use that logo in connection with a computer product, the consuming public would automatically assume that the product comes from Apple.  However, if you were to use a generic clip art image (say, a flying squirrel) in connection with your internet consulting company, and 15 other companies used the same clip art images (for say, internet consulting, women’s shoes, snowboards, etc.) you would have limited ability to prevent them, even if it was causing customer confusion (in the example of the internet consulting company.)  

 

Why?  In the case of the image used with other dissimilar companies, they have a legal right to use it too because they licensed the clip art.  So there is no copyright infringement problem.  In the case of the image used in connection with a confusingly similar company, because the image is widely used and is unoriginal, a court probably wouldn’t find that it was “distinctive.”  If it’s not distinctive, it can’t function as a trademark and you can’t protect it.  

 

Bottom line:  use clip art for general things, but when coming up with a brand for your company.  Original artwork is the way to go.    

This entry was posted on Friday, August 1st, 2008 at 12:15 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.