The Cyberlaw Guide to Protest Art: Sharing and Merchandising Your Work

This is the Sharing and Merchandising your work section of the Cyberlaw Guide to Protest Art. It covers licensing your work including with Creative Commons, using disclaimers, and making money. To get an overview of the complete Guide, visit the Roadmap, or link to the other sections here:

• Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
• Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
• Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
• Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
• Rights of Privacy and Publicity: legal rights of privacy and publicity, which are implicated when protest art features real people

Now that you understand the legal landscape of creating protest art, you’ll want to consider your own ownership interests. What are your objectives? Do you have ambitions to go viral, even if that means not getting paid for others’ use of your work, or would you rather control and be paid for uses of your work? Here are some things to think about.

Licensing Your Work

If you’ve already read our materials on copyright (part 1, 2, and 3), you know that an original creative work receives copyright protection automatically from the very moment it’s made — no official registration is required. That means you have the exclusive right to allow or disallow certain uses of your work, like copying, selling, displaying, and performing. If you want to allow someone to use your work (for example, you want to let an advocacy organization put your image on some posters they’re printing for an upcoming march), lawyers call that permission a license. We discussed getting a license to use someone else’s work in Copyright Part 3 of this Guide, and the same basic advice applies.

It’s a good idea to get down the basic agreement in writing, so that you’ll have a record later. Email, even text message, can be fine — you don’t necessarily need a hard copy — but you do want some record of them agreeing to your terms. The point is to be sure you and the person you’re going to allow to use your work actually agree on the plan and stick to it. Key points you’ll want to think about include:

• Names of the people and organizations involved (is it okay with you if they let others use the work too?)
• Work you’re giving permission for, with enough detail to distinguish it from other things you’ve made
• How they are allowed to use it (in print? online? how many times/copies?)
• When and where are they allowed to use it (forever, or during a particular year, month, or day? everywhere, or just at a particular event?)
• Can they change your work (put a title over it? alter the lyrics? show only one small piece of a bigger work?)
• Whether you will be charging for your work, and if so how much (including any details about how and when they will pay you)

Should I Use a Creative Commons License?

If your intention is to distribute your work broadly and you know there are certain kinds of uses that you’ll always be okay with, you can apply one of the Creative Commons licenses to your work. These licenses allow artists to give permission to others to use their works without having to negotiate individual licenses over and over again, and some platforms (like Flickr, YouTube, and Bandcamp, for example) make them very easy to use. There are a few variations, so that the artist can communicate her preferences: is she okay with commercial uses or not? Do users have to provide attribution?

Creative Commons have one thing in common, which is that they only apply to free distribution of works: if you want to charge a fee for every use of your work, they’re not the right solution for you. However, more profit-minded owners can grant Creative Commons licenses for noncommercial uses (like individuals wanting to repost an image on their website), but still negotiate case-by-case with others who want to make commercial uses of their work (like printing and selling a bunch of t-shirts).

Creative Commons licenses have several qualities that make them useful to artists like you:

• Consumers and other artists can tell right away what you’ve agreed to, and what you’re not okay with (each license has a “human readable” summary in addition to the legal terms)
• Creative Commons provides guidance on credits so that artists who want attribution get it
• They are enforceable around the world and are translated into many languages
• They do not affect users’ rights to fair use

There are several varieties of CC licenses that you can pick between to suit your needs and goals. For example, you can choose whether to allow commercial use of the copyrighted work, and whether or not users have to give you a credit. Creative Commons has a “License Chooser” tool to help you pick. Here are some of the options:

• CC0: this license effectively dedicates the work to the public domain
• Attribution (CC BY): This license lets others distribute, remix, tweak, and build upon your work, even commercially, with credit to you.
• Attribution-No Derivative Works (CC BY-ND): This license lets others distribute your work, even commercially, but not remix, tweak, or build on it (it has to be passed along unchanged and in whole), with credit to you.
• Attribution-NonCommercial (CC BY-NC): This license lets others distribute, remix, tweak, and build upon your work, but only non-commercially, with credit to you.

To see the entire range of Creative Commons licenses, you can browse the full list here.

Using Disclaimers

If your work features or is based on another copyrighted work of art, you should consider including a disclaimer when you post it. A disclaimer will clarify that there are (or might be) third party rights in the material — that is, someone else has a copyright interest in an underlying work that you’ve incorporated into your work — and that you can’t grant anyone permission to use that material. Disclaimers are especially useful when you’ve decided your use of that underlying work is a fair use, or when you’ve gotten a license that gives you only limited permission to use it.

For example, an artist could obtain a license for an Associated Press photograph of a politician to use a photograph in a derivative work of protest art. However, if the license terms don’t allow the artist to let others use the photo, the artist can include a disclaimer when she posts her work to the internet. In her disclaimer, the artist should make it clear that she is making no representation that the image is cleared for others’ use. Depending on the language in her license from the AP, she might even mention them by name and say that they retain the rights in the underlying image.

“The White House in Washington, D.C.,” by AgnosticPreachersKid, CC BY-SA 3.0; “To The Victor Belongs The Spoils,” by Charles Marion Russel, (public domain)

Making Money

Maybe your goal isn’t just to spread your protest art as widely as possible: you want to make a profit. There are a number of factors to consider — is your work entirely original, or have you incorporated copyrighted material? What are terms of the licenses you have negotiated with existing copyright owners? Keep these questions in mind as you read on.

Merchandising your artwork

If your work is entirely your own expression, free of any underlying copyrighted materials or trademarks, and it doesn’t identify any individuals (potentially implicating the right of publicity) you possess all the ownership rights in your work. This means that you and you alone have the right to merchandise your work or any derivative works — think big! You can produce and sell shirts, bags, mugs, or whatever else you like featuring your artwork.

However, if you have incorporated others’ material into your protest art or used the name or image of another individual, you have some legal issues to think through when it comes to merchandising. The Copyright (Part 1, 2, and 3), Trademark, and Rights of Privacy and Publicity sections of this Guide go over the risks, so you should review them in detail. For example, if you’re premising your use of a copyrighted image on fair use, the original copyright owner may be driven to file a lawsuit if she sees you making money off of her material without a license. Remember — whether or not your use is “commercial” is one of the most important factors in a fair use analysis. Your intention to make a profit could tilt the scales against you.

Moreover, even if you were granted a license in the copyrighted work, licenses often contain provisions that limit commercial use. If you want to merchandise, make sure you are operating within the limits of your license, and contact the copyright owner to get additional permissions if necessary.

Selling on your own webpage

If you decide to sell your artwork, you have a few choices. One option is to sell your material through your own webpage by using a third party payment button. For example, services like PayPal provide a quick solution for accepting payments via credit card, debit card, or PayPal account. To set up a payment button for your site, simply consult the PayPal developer guide and follow the instructions. Keep in mind that as a merchant, you will be subject to third party fees — i.e., the company facilitating the payment may be entitled to a cut of your sale, or may charge you a flat rate for each transaction. Make sure you research what transaction fees apply before choosing a vendor.

Selling on another platform

If you don’t have your own website or would rather use a third party platform to conduct sales, you have a variety of options. Popular platforms for artists include Society6, Redbubble, and Etsy. Which platform you choose depends mostly on whether you will be relying on a third party supplier to produce your merchandise or you will be selling a finished product.

Third party suppliers: If you are relying on a third party supplier, you may be subject to certain terms and conditions. Society6 and Redbubble are examples of sales platforms that also act as suppliers for custom merchandise — in other words, they help you make the items (based on artwork you upload) and sell them. In their terms of use, both Society6 and Redbubble ask you to represent that you, as an artist, either own or have obtained rights in everything you post. Both sites also waive responsibility and liability for any conflicts arising from failure to obtain such rights. If you are using others’ material in the protest artwork that you plan on selling through one of these sites, you need to be confident you have the rights (whether through fair use or a license) to use and sell it.

Society6 and Redbubble also include an indemnity clause in their terms of use. This common clause is used in contracts to shift costs and risks from one party to another. Society6’s and Redbubble’s indemnity clauses essentially transfer any legal repercussions entirely to you as the seller. This means if they get sued because of something you did, they’ll look to you to pay their costs.

Finished products: If you are selling finished merchandise featuring your artwork online and not relying on a third party supplier platform, you will likely be using Etsy. Etsy is slightly different from Society6 or Redbubble in that you can sell just about anything, rather than just putting an image on products the site has pre-selected. Like the third-party sites, Etsy’s terms of use provide that you as a user must not violate any third party rights, and include a very similar indemnity provision. If Etsy gets sued because someone believes your materials violate their intellectual property rights, they’ll hold you responsible for their costs.

Note that these platforms may require that artists grant them broad rights (though usually non-exclusive) to use, display, reproduce and distribute the works sold on their platform. For instance, Society6’s terms of use states that you, the artist, “grant Society6 and its affiliates a worldwide, royalty-free, nonexclusive, assignable license, with right of sublicense, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your Content” for the purpose of providing their services. Because these rights are sub-licensable, your images could appear in places you don’t expect. Artists who are very risk averse or who want a lot of control over where and how their work appears should consider whether they really want to grant these rights, or if there are alternative ways of merchandising that may be more beneficial to them (i.e., not through an online platform).

Accepting Donations

Artists sometimes collect donations to finance their work through online platforms. If you choose to go this route, you should make it clear what rights donors are or are not acquiring by donating. In particular, there is a risk of donors mistakenly believing they were acquiring a license in your work by funding it via donation. Artists should include clear language with any solicitation for donations conveying that donations are in support of their work generally and do not grant donors the right to use any specific work.

Also, as with third-party payments, there is the question of transaction fees charged by services such as Patreon, PayPal, or Kickstarter. For example, Patreon charges about 10% commission, while PayPal charges around 3%. Keep in mind that services with higher fees may be worth it if they provide useful services or higher-quality user experience.

Read More!

• Roadmap: an overview of the complete Guide
• Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
• Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
• Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
• Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
• Rights of Privacy and Publicity: legal rights of privacy and publicity, which are implicated when protest art features real people

The information in this guide is intended for background educational purposes and its authors are not your lawyers. For more information, please click here.