Effective Date: April 28, 2015
Welcome to the CafePress Content Usage Policy (CUP), establishing the guidelines for your use of the CafePress Website ("Website") to upload, store and use your designs, content and works ("Images"). By using the Website, you agree that everything you upload, store, or use on the Website complies with this CUP, and you accept liability for any non-compliant Images.
If you are a rightsholder, and believe that Images on the Website infringe your intellectual property rights, notify us as instructed in our Intellectual Property Rights Policy. If you are not a rightsholder, but believe that Images on the Website violate this CUP, please email us at email@example.com.
All Images uploaded to the Website will be graded against the CUP using a White - Gray - Black scale. Images that are clearly acceptable under our CUP are in the White zone. Images that are strictly prohibited under our CUP are in the Black zone. Images that are neither in the White nor Black zone are questionable, and are in the Gray zone. Images in the Gray zone, but closer to the White zone, may or may not be removed from the Website, while Images in the Gray zone, but closer to the Black zone may be more likely to be removed from the Website.
Below are some general examples of prohibited Images. Although CafePress has the right and authority, in its sole and absolute discretion, to remove any Images on the Website which CafePress believes violates this CUP, you are always fully responsible for all Images that you upload to the Website.
A. General Categories of Prohibited Images
Images are prohibited on the Website if they:
The list above is NOT exhaustive, and only serves as a general guideline.
AN IMPORTANT NOTE ABOUT TOLERANCE IN A DIVERSE WORLD: CafePress has millions of users, from varied backgrounds and cultures, who differ in their beliefs and views about what is considered acceptable and what is considered offensive. We recognize that along with such diversity comes differences which may result in some individuals being offended by the opinions, perspectives and creative expressions of others within our user group. We ask that you exercise tolerance, and respect each individual's right to express him- or herself in a manner consistent with this CUP, even if you personally find particular Images offensive and/or unacceptable.
All Images that you upload are automatically stored to the Website. We do not review any Images before you upload them to the Website. By using our service, you assume full responsibility for all of the Images that you upload to the Website, and for complying with this CUP.
B. Examples of Images Prohibited Under Intellectual Property Laws
Following are some examples of Images that should not be uploaded to the Website under intellectual property laws:
This list is not comprehensive. If in doubt, you should consult with an attorney.
A. Prohibited Software
You may not use any software which does any of the following to advertise, market or promote your Images via the Website:
Any commercial email you send to market and promote your CafePress shops or products, or related to your use of the Website, must comply with the CAN-SPAM Act of 2003, as amended, and any other applicable laws governing email communications including, without limitation, the following:
For more information on compliance with the CAN-SPAM Act of 2003 please visit the Federal Trade Commission website at http://www.ftc.gov/spam/ or consult with an attorney.
C. URLs, Keywords, Search Terms, and other Identifiers
You may not use in your domain name or URL, nor may you purchase or register in any search, referral, or advertising service (such as Google's AdWords® program) any of the following terms:
D. CafePress Branding Bar
You may not remove or alter the CafePress branding on your storefront and store pages.
E. False or Misleading Marketing Material
You may not use false or misleading content to market and promote your shops and products. Some examples of false and misleading information are:
All Images offered on the following products must comply with the rules below, which may be more restrictive than this CUP. We reserve the right to remove any Images from the Website that violate these rules, without notice and without incurring any liability to you or any third party.
SIGG® MERCHANDISE RULES
THERMOS® MERCHANDISE RULES
This Intellectual Property information is provided to help you better understand intellectual property laws as they may relate to your use of the Website. This information is for informational purposes only, and in no event constitutes legal advice. For specific advice regarding your use of the Website, consult with an attorney.
What is a Copyright?
Copyright protects original works of authorship, such as a picture, drawing, graphics, software program, written work, sculpture, song, or photograph. A copyright is created as soon as a work is fixed in a tangible medium (e.g., on paper, on video, on canvas, etc.). A copyright is a bundle of rights, including the exclusive right to distribute, sell, duplicate, publicly perform, and create derivative works from the original work. Copyright law prevents you from copying, distributing, selling, or publicly performing another's original work without permission. Copyright law also prevents you from creating derivative works based upon or derived from another's original work without permission. Copyright protects original expressions of ideas not the ideas themselves.
How long does copyright protection last?
As a general rule, for works created after Jan. 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works created prior to 1978, the term of a copyright depends on several factors, including whether it has been published, and, if so, the date of first publication. In general works created before 1922 are in the public domain. However, if a change has been made to a work taken from the public domain, the new work may be copyrightable and protected. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (Title 17 of the United States Code).
What material is in the public domain?
A work of authorship is in the "public domain" if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. You should NOT presume that material is in the public domain without verifying it with an attorney or other reputable source. You should also NOT presume that material publicly available on private or commercial websites is not protected by copyright.
What is fair use?
"Fair use" is a principle of copyright law that allows for the unauthorized use of another's original copyrighted work for the purposes of criticism, commentary, news reporting, teaching, scholarship, and research. In determining whether a given use is "fair," courts look at four primary factors:
Fair use is a difficult and murky concept, even for experts, so you should consult with an attorney before using copyrighted material, even if you think that such use is "fair." One way to evaluate whether a use is "fair" is to consider your own reaction if someone used your work without permission.
For more information on copyright visit the United States Copyright Office at http://www.copyright.gov and the federal law on copyrights (U.S.C. Title 17) http://www.access.gpo.gov/uscode/uscmain.html.top
What is a Trademark?
A trademark is a word, name, symbol or other device that identifies the goods or services of a given person or company and distinguishes them from the goods or services of other persons or companies. Trademark law prevents you from using another's trademark (such as the name of a musical group or artist) on your merchandise, because such use may cause consumers to believe that the trademark owner has made, approved of, or endorsed your merchandise. In short, a trademark is someone's name/brand. For example, CafePress® is a registered trademark.
What is a Service Mark?
Any word, name, symbol, or device or any combination thereof adopted and used by a merchant to identify and distinguish their services from those provided by others and to indicate the source of the services. For example, CafePress® is a registered servicemark.
What can be trademarked?
A trademark is a brand name. Any word, name, symbol, device or any combination, used or intended to be used to identify and distinguish the goods of one seller or provider from those of others, and to indicate the source of the goods, can be a trademark.
What are Trademark/Service Mark Rights?
An owner of a trademark/service mark has the right to use that trademark/service mark and to prevent others from benefiting from the trademark/service mark's good reputation and recognition in the marketplace. While certain trademark uses may be considered a fair use, CafePress' policy is to restrict uses of third party trademarks except for content depicting political parties for the purpose of promoting political free speech.
What is the difference between a Trademark and a Registered Trademark?
The ® symbol represents that a trademark is registered with the U.S. Patent and Trademark Office. The ® symbol may only be used in association with a trademark that is registered with the U.S. Patent and Trademark Office. If the trademark/service mark is followed by a TM or SM, symbol the goods/services provider is using the mark as a trademark, although the mark may not be registered with the U.S. Patent and Trademark Office.
For more information on Trademarks visit United States Patent and Trademark Office at http://www.uspto.gov and the federal law on trademarks (U.S.C. Title 15) http://www.access.gpo.gov/uscode/uscmain.html.
Right of Publicity
What is Right of Publicity?
The "right of publicity" makes it unlawful to use another's identity for commercial advantage without permission, subject to certain exceptions. A person's "identity" includes, for example, his/her look, voice, name, nickname, professional name, and other distinctive characteristics.
Right of Privacy
What is the Right of Privacy?
Generally, individuals have a "right of privacy." An invasion of this right can occur in four ways:
What is defamation?
Defamation occurs when:
A false and damaging statement of fact; concerning an individual or entity; is communicated to a person or persons other than the individual or entity whom the false or damaging fact is about (i.e., published); and the person publishing the information knew or should have known it to be false.
In this circumstance, "published" means that the statement was written or verbally communicated to another. Written defamation is also known as "libel." Verbal defamation is also known as "slander."
Does CafePress own the rights to my Images?
No, you retain all rights in and to your Images, but grant us a non-exclusive license to store and display the Images on the Website, and to print and ship products bearing your Images to you or your customers on your behalf. For more information on the license you grant to CafePress, please review the Terms of Service and Content Owner Agreement.
If it does not have a copyright notice, is it ok to use?
Almost all works are protected by copyright, even if they do not have a copyright notice. Therefore, you should assume that you need to obtain permission to use any material that you did not create. Do not copy someone else's work without first obtaining their permission to do so.
If I do not mark up the selling price of my products, is it still infringement?
If a product is not marked up from its base price, that sale may still constitute an infringement, even if you are buying the product yourself. Merely posting an Image to the Website, even if you don't offer it on products, may be considered an infringement.
Is it ok to use an image I found on the Internet?
Simply because an image is found on the Internet does not mean that it is in the public domain or available for commercial use on merchandise. You should assume that you cannot use the image unless its author has explicitly granted you a license to use it or it is in the public domain. Further, a person who posts an image on the Internet and claims that you are free to use it may not have had the right to post the image in the first place. Thus, your use of the image may violate the rights of the actual copyright owner.
Is it Fair Use?
If in doubt, assume any unlicensed use is not a fair use. Fair use of an image for commercial purposes is treated differently than use for informative purposes or commentary. In general, a claim of fair use of an image on merchandise may not hold up in court, especially if the merchandise is sold for profit.
If I took a photograph of a celebrity or a company logo, can I use it to make merchandise?
Probably not. Simply taking a photo of a person, company, brand, or logo does not afford you the right to sell merchandise featuring that photograph. There are two distinct intellectual property rights in a photograph: (1) the rights in the photograph itself and (2) the rights in the subject of the photograph, such as the product or person shown in it.
Do I have to obtain a copyright registration for my Image?
No, but there are advantages to registering your copyrights. Current copyright law does not require you to register an Image in order to hold a valid copyright for it. However, a registration may be required before you can file a lawsuit for copyright infringement. In addition, if you register your Image within 5 years after its initial release, you will have stronger evidence of the validity of the copyright. Essentially, that means that it will be easier to prove that you own the copyright in the Image.
I based my Image on the artwork of a third party, is that ok?
It depends. Images derived from the previous work of another may violate the rights of the owner of the previous work. If you are creating an Image that is based on the work of someone else, you may need to obtain permission from the original creator prior to creating your own Image. You should consult with an attorney before creating Images based on the work of another.
It is parody, is it ok?
Parody is one form of fair use (please see "What is Fair Use"). Parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition. Whether something falls within the fair use parody exception depends on whether the parody reasonably could be perceived as commenting on the original or criticizing it, to some degree. Generally parody, like fair use, is a difficult and murky concept, even for experts, and you should consult with an attorney for any Images you believe qualify as parody.
I am using Clip Art, is it ok?
Most clip art, photo collections, or graphic programs contain a license agreement. The license agreement sets forth the specific permissible uses for the clip art. In most instances the license does not grant you the right to use the clip art for the sale of merchandise. You should consult the license agreement, and your attorney, to determine whether you can use the clip art images in connection with the CafePress Service.
The First Amendment protects my freedom of speech, so I can use whatever images I want.
Freedom of speech is a constitutional protection that guarantees that the government will not oppress your right to self-expression.
Do Political Figures have a Right of Publicity?
While the right of publicity law varies from state to state, generally political figures, like any other person, have the right to control the commercial use of their name, image, likeness or any other distinctive characteristic. However, certain uses of political figures may raise to the level of protected speech given the fundamental First Amendment principles of unfettered debate and discussion on public issues and governmental affairs.
Do I need a lawyer to register a copyright?
Not necessarily. To register the copyright for an Image, you may personally file an application with the United States Copyright Office. The application must include copies of the Image and the appropriate filing fee. For more information, you can access the Copyright Office website at http://www.copyright.gov.
The information contained under "Frequently Asked Questions" is for informational purposes only and does not constitute legal advice.